Can you get fired for smoking — at home?

One fall day in 2006, Scott Rodrigues arrived for work at the Massachusetts lawn and garden company that had hired him several weeks earlier, only to hear bad news.

The results of a drug test required for employment showed that Rodrigues, 30, had ingested a substance expressly forbidden by company policy: nicotine.

Rodrigues knew of the company’s anti-smoking policy, but argued that he never smoked on the job; he smoked only at home. It didn’t matter. He was fired on the spot.

A few weeks later, Rodrigues filed suit in state court, the victim of a growing workplace trend: Beset by escalating health-care costs, employers are increasingly seeking to regulate employee behavior — at home as well as in the workplace.

“In the last couple of years we’ve seen a huge rise in employer actions based on off-duty legal activity,” says Jeremy Gruber, legal director of the National Workrights Institute, a nonprofit organization in Princeton, N.J.

Employment lawyers refer to this phenomenon as “lifestyle discrimination” — and they believe the practice will continue to spread.

Susan K. Lessack, a lawyer in Philadelphia, represents employers. She says they are becoming “increasingly aggressive” about employee smoking — including off-the-job smoking.

According to Lessack, employers’ motivation extends beyond the greater likelihood that smokers will get sick and use health benefits.

“Smoking can also result in diseases, like emphysema and cancer. [But] then you get into a potential disability issue. Can you take action if somebody has emphysema? That gets kind of tricky,” she notes.

Not all companies’ anti-smoking policies have led to workers being fired. The Tribune Company, which owns The Sun, raised insurance premiums $100 a month this year for each employee and covered family member who smoke. The Washington-Baltimore Newspaper Guild has filed a grievance that will go to arbitration.

Some employers have taken stricter approaches to cut expenses related to smoking.

For example, Weyco, an insurance benefits administrator in Michigan, launched a program to require mandatory breath tests for its 200 employees. The company said any employees who tested positive for nicotine would be sent home without pay for one month, and if it happened a second time, they would be fired — no matter how long they had been with the company.

Weyco has since expanded the smoking prohibition, requiring monthly nicotine tests of spouses. A positive test means the employee must pay a monthly fee of $80 until the spouse takes a smoking-cessation program and tests nicotine-free.

The Weyco policy has not faced any legal challenges; employment lawyers say that’s because Michigan is one of 20 states that lack a lifestyle-protection law that would curtail employers’ ability to regulate smoking and other behavior outside of work.

Maryland is another state without lifestyle-protection laws. Smokers are not a “protected class,” so private employers can fire or refuse to hire them. The state keeps no records of such cases.

Smoking isn’t the only activity that employers are interested in regulating. According to Gary E. Phelan, a lawyer in Stamford, Conn., employers are beginning to categorize the overweight along with smokers as a potential cause of higher company health-care costs.

Phelan, who has successfully represented overweight workers in employment actions, says the key is to demonstrate that the worker has been perceived by employers as being disabled.

That tactic may be more difficult to apply in other situations, like smoking cases, Phelan says, but it’s not impossible.

“You might be able to tie the smoking to the perception that as a class of individuals they’ll be more likely to be unable to work at some point,” he says. “It’s difficult, but there are arguments to be made about employers perceiving them as being substantially limited.”

He also notes that at-will employment doesn’t leave employers free to do anything they want. Termination of employees who engage in legal activity in their private lives could be considered “a violation of public policy,” he says.

One check on employers’ choices concerning this is the fear that rules that are too restrictive can damage company morale.

“The problem you run into is: If you’re terminating people based on their use of nicotine, what about red meat?” Phelan says. “Do you start doing lie-detector tests on what they had for lunch? Even if [employers] can’t get sued for it, that doesn’t necessarily mean they should be doing it.” {EXA}

Dick Dahl is a reporter for Lawyers USA. He can be contacted at  

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