Human Resources News & Insights

Can employer refuse to hire smokers?

Employers generally have a lot of freedom to prohibit certain conduct at work. But regulating off-duty conduct can be tricky business.

Here’s a real-life example of how trying to control off-the-clock behavior can leave employers on shaky legal grounds:

The Scotts Company in Massachusetts started a wellness initiative that included a policy against employee smoking — both on and off the job. Employees would be required to submit to nicotine testing. The company said the policy would:

  • Lower medical costs significantly, and
  • Promote healthier lifestyles.

The company hired Scott Rodrigues and required him — like all potential employees — to take a nicotine test. He worked for two weeks while the results were pending. However, the test revealed Rodrigues was a smoker, and he was fired.

Rodrigues sued, claiming mandatory nicotine testing violated Massachusetts’ Privacy Act. He argued that he had a reasonable right to privacy outside of work. He also pointed out that smoking was legal and had no bearing on his job performance.

A court first sided with Rodrigues and let the case move forward. The state’s Privacy Act protects citizens’ rights to “unreasonable, substantial or serious interference,” so the court had to examine whether Scotts had a legitimate business reason to enforce the policy and require the testing.

But the case was later thrown out. This time, the court ruled Rodrigues had no privacy protection because he never tried to keep his smoking habit private. However, if he had, he might have won.

The lesson: If your company’s considering a wellness program with rules about what employees can do on their own time, make sure you check your state’s laws. Many have rules against firing someone because of legal activities they do outside of work.

Other jurisdictions, such as Connecticut, expressly forbid firing or discipline based on tobacco use away from the workplace.

What do you think? Should employers be able to create policies like the Scotts Company’s? Give us your opinion in the comments section below.

Cite: Rodrigues v. EG Systems, Inc.

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  • HR-Lady

    Smoking IS bad for your health anyway. However, I can see why it would become a problem, next thing you know, employers would slowly but surely go after everything else we do on our personal time. What’s next -an employee not exercising daily?

  • Cindy

    How about those employees who drink when they are on their own time? Drinking causes a whole barrell of health problems too! What about those who engage in dangerous sports? No employer should be able to dictate what employees do on their time as long as it’s legal unless those employers are willing to keep them on the clock 24/7!

  • SCH

    I am a smoker. My company set forth a new policy(I had to write) not to allow smoking on any facilities grounds. I like my job and so I don’t smoke. Some of our staff go off company grounds and smoke during work hours but are required to limit to once a day and must clock out. We are in healthcare and feel we need to project a healthy enviroment for our patients,visitors and staff. Some have adjusted some haven’t. We are considering charging the staff who smoke a higher medical insurance premium. Has anyone had expierence with this concept and any complications or fallout??

  • Lilly

    I agree.
    My only question is, was this a requirement as part of the health insurance plan? When I recently renewed our plans, there were several lower cost options that included wellness programs. Maybe anti-smoking was strongly recommended but the employer in this case took is a step further?
    It’s all about cost-control. Be prepared; if the government gets its hands in our healthcare, you’ll see much more of this and who do you think would win if they even allowed a lawsuit?

  • Cindy

    SCH- My greatest concern would be the legal exposure to attempt to choose one unhealthy habit and charge a higher premium. “I see lawsuits”.

    I’d prefer to offer incentives but then I have another half of the workforce getting upset because they aren’t getting an incentive just because they have chosen not to pick up a bad habit. I too smoke but I’m working in the depths of a prison (our admin area is set up strange) Of course smoking is not allowed on the grounds at all. Since the grounds cover a few acres, those that smoke develope the ability to go without unless you are driving somewhere for lunch wihich is almost pointless as it can take 15 minutes just to get to your car! I’m old enough to remember what it was like to just light up at your desk! Times change but forcing things into an employees personal life is going across the line in my opion.

  • essie

    Half of our housekeeping staff spend 10-15 minutes of nearly every hour on smoke breaks. This has been reported to their manager who refuses to handle it as she doesn’t like to deal with confrontations!

  • essie

    We have a waitress with emphysema, etc. who is constantly out for lung-related illnesses, and continues to smoke even while taking 2x daily oxygen breathing treatments. Another waitress just had a lump removed from her breast and quit smoking for two whole weeks.

  • http://www.jtcsteel.com Al Gilmour

    IN CALIFORNIA NO YOU CANNOT REFUSE TO HIRE BECAUSE APPLICANT IS A SMOKER, HOWEVER THERE ARE STATE LAWS AS TO WHERE YOU CAN SMOKE IN WORKING PLACE ACCORDING TO SQUARE FOOTAGE ETC. ANY LAW COMING OUT OF MASSACHUSETS WHERE MR. BARNEY RESIDES IS A JOKE.

  • Dave P.

    I agree with some of the others that this starts down a road that may cause problems in the future. Where do we draw the line? I’m over weight, drink a little in the evenings, or have gene’s that give me a propensity for cancer…

    Instead of policies against smoking, I am more inclined to create policies that are designed with incentives that discourage such behavior. It’s legally easier to defend from one state to the next. It’s more practical than to have to terminate some one who might otherwise be a good employee, and it’s easier to deal with ethically.

  • Pauline

    Are they going to go after obese employees next? Be very careful; our personal liberties are slowly being chipped away even if we are not at work!

  • Cindy

    what are you going to tell the employees who don’t have unhealthy habits? What is their incentive or reward? We’ve done this with somthing as simple as attendance and it’s backfired at times.

  • Dave P.

    Give the incentives to those who are being healthy. There are laws that restrict some of these, but it can be done.

  • CONLMAC

    I would tread lightly on this subject as I feel smokers may soon be covered under extensions of the ADA. It would be difficult, at best, to prove smoking is any more harmful than unchecked morbid obesity, high blood pressure, and diabetes. Would an employer consider limiting what a person can eat (low fat diet), drink, (no caffiene such ascoffee & sodas), and sweets? Everything offends someone and anything without moderation is bad for anyone. If the employer wanted to charge higher rates for smokers, so be it. However, those same increases should apply to those who fall into to other high-risk categories such as obesity, diabetes, and high blood pressure, just to name a few. No one wants to be the “bad” guy and call these issues out as the risk they are because the masses do not view them as “self-inflicted”. Medical history will tell us that in many cases these conditions are just as self-inflicted as smoking. One can choose to control their “accepted” medical issues by diet and excercise. How many people do YOU know which have these conditions actually make efforts, beyond taking prescription medication, to improve their health. They generally use their condition as a “crutch” to continue bad behavior. So, how do you say one is worse than the other?

  • Martha

    I think this is going too far. I believe employers have the right to not allow smoking at work and to not allow smokers any more breaks than anyone else. I am a smoker who is currently trying to quit. I know smoking is bad, amoung other “legal” habits people have. I don’t think an employer has the right to dictate what employees do on their own time if it doesn’t effect their work. We need to focus on the employee’s work habits, not their personal habits. Our company has a “no-smoking policy”, but does not dictate what employees do on their own time. If this is allowed, where will it stop? We currently offer two health plans. One with a high deductible and an HSA attached. The cost difference is so drastic the company puts $150 per month into the HSA for each employee on that plan and that plan is still less costly to the company. The employees on the other plan have to pay the difference in cost between the two plans. If their bad personal habits have caused health problems they pay for it by more co-pays, etc.

  • Jim

    My freedom is precious. As long as my activities are legal and don’t interfere with work then I see no reason why my employer should step on my rights. Smoking makes me happy and I have a right to pursue happiness. Maybe folks should remember why this country was founded. I may sound like a nut but I like to live life the way that I want to live life. If anyone decides that they need to control people at the level being discussed here then I would say that they are the ones with issues and not me. I may change my tune at any point about smoking but that is my right, my life, my freedom. Remember that freedom is not an extremist view point. It is the right of every single American and must remain so. If we lose that basic philosophy then America will no longer be American.

  • mike R

    Good behavior. Bad behavior. It is so judgmental. It sets up winners and losers and those who are right and the others who are wrong. I had hoped to be beyond this after high school, however we have an entire country of adults who have not grown emotionally.

    I have yet to meet anyone who does EVERYTHING right. And those who protest the loudest are usually the biggest offenders. When i counseled people with addiction problems many years ago, we once had a presentation where the people were asked to sit in the “priority of their addictions.” Alcoholics started arguing with drug addicts that they weren’t as bad. Over eaters were arguing with the alcoholics and drug addicts. The “normal” people started having emotional fits and yelling at everyone. The speaker finally took the podium and pointed out that if they were angry and upset that they had the biggest problem.

  • Marie

    OK — where do you draw the line — is this company going to deal with folks who are anorexic — are they going to quiz the applicants on this score, will they terminate if the person loses too much weight, are they going to terminate if a person drinks, how about the employee who has 3 or more divorces — going to terminate them for the inability to maintain stable relationships. Slowly but surely personal freedoms are being infringed upon by employers. The only time personal freedoms should be addressed by an employer is if it negatively reflects on their job — a truck driver for instance could be terminated if he has DUI’s –

  • Debbie

    My previous employer also had the stipulation that you be a non-smoker to work there. I don’t smoke, so it was no big deal to me. After a few months on the job I found out that there are several long term smokers who work there and go outside to the parking garage to smoke. This fact was known by all employed there, even upper mgmt.

    This employer also required that employees be registered to vote. Not that we had to vote or be a specific party, but that we were registered. Also, something that is not a big deal to me as I believe that voting is important.

    However, I had serious doubts about my own ability to work there given the dubious policies enforced selectively by mgmt. It turns out that this was only a small indication of the issues there. I did last 8 months before voluntarily leaving to pursue a much better opportunity…

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