Worker Fired for Being a Smoker Sues Scotts

November 30, 2006 ( - A worker who was fired after he tested positive for nicotine is suing lawn care firm The Scotts Co.

The Boston Globe reports that Scott Rodrigues has filed a civil rights and privacy violation complaint against the company. Scotts announced a mandate for employees to stop smoking or be fired as part of a wellness program instituted last year (SeeOhio Firm Latest to Join Workplace Smoking Crackdown).

Rodrigues was a pack-a-day smoker when he was hired by Scotts earlier this year, and was aware of the policy when he was hired, according to the Boston Globe. He had previously received a written warning after a supervisor saw a pack of cigarettes on the dashboard of his car. He was fired in September after a drug test showed high nicotine levels in his urine.

At the time of the nicotine testing, Rodrigues was trying to stop smoking and was chewing Nicorette anti-smoking gum. He believes the gum may have contributed to his elevated nicotine levels. “That was the really crazy thing – I was trying to stop smoking,” he said, according to the Globe.

Rodrigues said he was treated unfairly because he was fired before the policy had officially taken effect and the company never offered to help him quit smoking.

The lawyer who filed the complaint said he believes it is the first case involving an employee who was terminated for engaging in a legal activity outside the workplace. “Next they’re going to say, ‘You don’t get enough exercise’ or ‘Both your parents died of a heart attack at age 45 so we don’t want to hire you because you’re more likely to need medical care,'” said Harvey Schwartz, the Boston lawyer representing Rodrigues, in the news report. “I don’t think anybody ought to be smoking cigarettes, but as long as it’s legal, it’s none of the employer’s business as long as it doesn’t impact the workplace.”

Scotts spokesman Jim King said the policy is intended to reduce medical costs. According to the news report King said the company is not interested in dictating employee behavior outside of work but believes smoking is different since it directly affects company costs. “So what we’re really saying is we’re not willing to underwrite the risks associated with smoking,” he added.

Scotts is not the first or only firm to crack down on employees who smoke in an attempt to control health care costs. Weyco Inc. has a similar policy to Scotts and performs nicotine testing on its employees (See Lawyers Smolder over MI Firm’s No-Smoking Policy). Other firms have chosen instead to assess a larger health care premium on workers who smoke (SeePeach State Slaps on $40 Employee Smoking Surchargeand Northwest to Kick off Smoker Health Coverage Surcharge ).