U.S. District Judge George A. O’Toole, Jr. of the U.S. District Court for the District of Massachusetts issued the ruling in a case involving Scott Rodrigues who said he was fired after only a few weeks when a urine test turned up evidence of nicotine in his system (See Worker Fired for Being a Smoker Sues Scotts ). The company later argued he had never been formally hired because of the urine test results.
Although O’Toole tossed out a wrongful termination claim and an allegation of a violation of the Massachusetts Civil Rights Act, he ruled that Rodrigues had put up a strong enough showing on two other allegations:
- That Scotts’ treatment of him represented a violation of Section 510 of the Employee Retirement Income Security Act (ERISA) because he was never allowed to enroll in the company’s health plan.
- That Scotts’ attempt to regulate his out-of-work behavior represented a violation of the Massachusetts Privacy Act.
The Scotts Co., a subsidiary of Scotts-Miracle Gro Co. of Marysville, Ohio, instituted a policy in 2006 forbidding smoking to promote healthful lifestyles and hold down insurance costs (See Ohio Firm Latest to Join Workplace Smoking Crackdown ). In the 20 states that allow such policies — including Massachusetts — the company has refused to hire smokers and tests all new employees for nicotine, according to news reports.
Rodrigues charged that wasn’t told he would be tested for the substance and was told the company would help him quit.
O’Toole explained in the ruling that privacy right cases involve courts balancing competing interests between the parties. In the matter involving Rodrigues, O’Toole wrote, “ it is enough for him to articulate a plausible privacy interest, which he has, and to aver, plausibly, that the articulated interest outweighs the defendants’ stated interest in a generally healthy workforce that will have high productivity and low health care costs. Filling out the details on which the balancing will ultimately be done is a matter for discovery and, if necessary, trial.”
On the ERISA claim, the company argued that even if Rodrigues were to be considered an employee, excluding him (by firing him) from participation in its benefit plans because of his smoking, rather than because he was making or was expected to make a claim for benefits, does not violate the statute.
O’Toole asserted that as the case proceeds, Rodrigues will have to prove that the loss of benefits was a prime motivating factor behind his being let go and that the intent to deprive him of benefits was directed at him specifically.
“The resolution of each of these issues may depend on what facts the plaintiff may ultimately prove,” O’Toole wrote. “Scotts’ expectation that the facts ultimately proved (or not proved) will resolve the issues in its favor is not enough to warrant dismissal.”
Lawyers at New York firm Nixon Peabody warned clients in a legal blog that trying to regulate employees’ off the job behavior could be problematic. “Employers should carefully consider whether the cost savings associated with implementing such a broad no-smoking policy are worth the risk of future litigation under ERISA and/or state law issues,” wrote Thomas J. McCord, Gary J. Oberstein, and Renee M. Jackson.