We have all heard the Surgeon General’s warning: smoking is bad for your health. Now, it seems a new label is needed stating that smoking is bad for your job. Recently a Massachusetts employee was terminated form his employment because he tested positive for nicotine. According to the employee, he never smoked on the job or during working hours. He did not smoke during breaks from work or in the presence of other employees or customers of the employer. In his complaint, the employee alleged that the company’s anti-smoking policy violates the Employee Retirement Income Security Act (ERISA) because it discriminates against the participants in the corporation’s health benefits plan for the purpose of interfering with their receipt of medical benefits. The case Rodrigues v. Scotts Co., LLC, 07-10104 (D. Mass. Jan. 30, 2008) (Westlaw subscription required), recently survived a motion to dismiss.
This issue, however, begs the question to what extent will the employers go to limit risk? Should the court allow the employer to prevail on this issue, what will be next? Will employees begin to weigh in on Mondays to see if they have gained weight and are now obese? Will employers conduct surveillance on their employees to see what risk taking activities they perform on the weekend? Since being a minority places one at a higher risk of high blood pressure, diabetes, and heart disease, will that become a valid reason for not hiring or terminating an individual’s employment? No doubt this will be a hard fought battle as employers try to balance the ever-rising cost of providing benefits to its employees, and their employees’ civil rights to do as they wish in the privacy of their home. Stay tuned….