Massachusettes - smoker loses job and then loses in federal court..

August 10, 2009 - A federal judge has sided with The Scotts Co., a lawn care firm that workers cannot smoke on or off job. Scott Rodrigues had been working as a lawn-care employee for Scotts Co. for only about two weeks when he was fired in 2006 after a drug test found nicotine in his urine, a violation of a company policy forbidding employees to smoke on or off the job. He promptly filed a lawsuit that argued, among other things, that the company violated his right to privacy.

Now a federal judge has dismissed the suit, ruling that Rodrigues’s smoking was not a protected privacy interest because he never kept his puffing a secret. In granting Scotts’s motion for summary judgment, US District Court Judge George A. O’Toole Jr. said that Rodrigues admitted in a deposition that he smoked while walking down the street and in a restaurant parking lot and was caught by a Scotts supervisor with a pack of cigarettes on his dashboard. “It is clear from those admissions that Rodrigues has not attempted to keep the fact of his smoking private,’’ O’Toole wrote.

The judge also rejected Rodrigues’s contention that his firing violated the 1974 federal law that protects employees’ rights to their benefits. O’Toole said that law did not protect Rodrigues because he was not yet a bona fide employee and was only working on the condition that he passed the urinalysis.

Scotts’s smoking ban was announced in 2005 by chief executive Jim Hagedorn, a former two-pack-a-day smoker, and went into effect Oct. 1, 2006, giving the company’s employees nearly a year to prepare. Scotts has paid for employees and their families to take part in smoking cessation programs.

At least 20 states have laws prohibiting employers from discriminating against employees for smoking off the job, he added, but Massachusetts is not among them.

His lawyer says he will appealing the ruling to the US Court of Appeals for the First Circuit. According to his lawyer the appeal will address “an important fundamental legal question, which is whether an employer can fire an employee who smokes on his own time away from work because the employer wants to save on medical insurance costs."

Reference: Smoker who lost job loses in court Judge sides with lawn care firm Workers cannot smoke on or off job by Jonathan Saltzman, The Boston Globe, 8/8/2009.