Can HR ban smoking – on AND off the job?
July 28, 2009 by Carol WarnerPosted in: Employment law, policies
Restricting employees’ off-duty conduct can be pretty tricky business. Do employers have the right to decide what workers can — and can’t — do after hours?
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 adopted a policy that required employees to stay tobacco-free — both on and off the job. For monitoring and enforcement purposes, employees would be required to submit to nicotine testing. The company said the policy had two key benefits:
- The policy would lower medical costs significantly, and
- The ban would promote healthier lifestyles.
New hire Scott Rodrigues was a smoker, but he never smoked at work or on company property. However, Rodrigues was given a mandatory nicotine urinalysis. The test showed nicotine was in his system. He was fired immediately.
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.
Scotts asked the court to dismiss Rodrigues’ claim.
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. The court agreed Rodrigues might have a case under the Privacy Act and denied the company’s motion to dismiss.
Now, the company faces a costly trial — or an expensive settlement.
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. The Scotts Company
July 29th, 2009 at 10:00 am
What an employee does legally away from work should not be an employers concern.
Did they consider charging smokers a higher premium for health insurance? I don’t think smokers are a protected class…
July 29th, 2009 at 10:10 am
Fast food is also unhealthy. Does the above mentioned employer also test for trans fat in employees after banning fast food? How about safe-sex practices? Does the employer care about STD’s? Point of order: Fast food and un-safe sex are as unhealthy as tobacco….Employers should not have the right to moniotor our after work LEGAL life.
July 29th, 2009 at 10:22 am
At a previous employer we used to get a huge discount on our insurance premium for testing negative for nicotine.
July 29th, 2009 at 10:40 am
No way. Unless it is a conflict of interest, illegal, or some other reasonable grounds, off-duty conduct that does not affect job performance should be off-limits for employers.
July 29th, 2009 at 10:48 am
Did this Company consult with their Corporate and/or Labor Law Attorney prior to executing this policy?
July 29th, 2009 at 10:57 am
The whole thing is too “big brother” for me and THAT I’m totally against
July 29th, 2009 at 11:14 am
How ridiculous! How could that company even think they could restrict legal activities after work hours? Are employees now slaves? What about alcohol use after work? Gambling? Over-eating? Our country is trying to become too controlling. Big brother is right!
July 29th, 2009 at 11:40 am
The company would have been better served by looking into a wellness program to include smoking cessation.
July 29th, 2009 at 11:40 am
Scotts has invaded peoples privacy to the point it should be against public policy. Unless employees smoke during working hours, it doesn’t affect business operations.
I found out about this a few years ago, and have STOPPED purchasing Scott’s products.
July 29th, 2009 at 11:44 am
Absolutely not, I agree with what Angel, Robert & Bethany’s comments.
July 29th, 2009 at 12:22 pm
I have seen this before and employers have gotten away with it in florida. They claim that it is an insurance thing and no employee would be allowed to smoke or would have to leave the job. They offered a 6 month cessation period and then if you were not off tobacco, you’re gone! This was an insurance company located in St. Pete.
I feel as an employer myself, that the employee has the right to do anything he/she wants to outside of work hours as long as it does not defame the company.
July 29th, 2009 at 4:43 pm
I am certainly in favor of a wellness program that includes a smoking cessation component and most insurance carriers are getting increasingly creative with rates; offering discounts for individuals meeting a preset health guideline. While I support one’s independent choice to be a health advocate or to indulge and enjoy all that our world has to offer in the way of personal preferences; I do also see an advantage to receiving a reduce insurance premium. To fire someone for their rights as a citizen to designate their life’s course is just absurd. However, in our sunny CA / finally passed a budget (stop laughing) state – one can be a ‘reformed’ smoker, attend some type of rehab to kick their habit and now be covered under ADA (The appeals court found sufficient conflict in the evidence to rule that the employee was entitled to a trial to settle the issue.3) and thereby have a case of discrimination based upon a covered disability in order to be excluded from the mandates…that last line is supposed to be funny!
3. Hernandez v. Hughes Missile Sys. Co ., 362 F.3d 564 (9th Cir., 2004)
July 29th, 2009 at 5:05 pm
Employers need to understand boundaries. Next, they’ll be commanding their employees to not drive on dangerous, accident prone roads, to not eat ice cream, to live only in “safe” neighborhoods, and to live life by their rules only, or you get fired. Want to go bungie jumping? Better consult the company rule book first…
This is ridiculous.
July 29th, 2009 at 6:48 pm
I agree with another poster that it would be more effective to reward those employees who don’t smoke with lower premium contributions then to punish those employees who do. Personally, I would never work for an organization who found it necessary to pry into my personal life, but in this economy I fear many people don’t have those kinds of options.
July 30th, 2009 at 6:49 am
I think my personal life should be personal. As long as I’m not violating any laws, what I do on my own time is my own business. If I want to smoke that is my business. If there is a no smoking policy at work then so be it, but after work that’s another story. This country was based on freedoms, let’s keep it that way!
July 30th, 2009 at 8:02 am
I think I agree with E. We will all be slaves someday soon. The company you work for will be owned by the government(eg. GM), who controls the laws and healthcare, therefore, if they tell you that you can not do something(anything they choose), then that will be a 24/7 order. Like it or not.
If you do not agree with this, you better jump up and write politicians and elect new ones right away. It’s like a freight train coming and it’s going to be very hard to stop it.
July 30th, 2009 at 8:21 am
Unbelievable! Next…after you buy a condo – the association will want to get cheaper rates of NON SMOKING home owners so you won’t be able to smoke in your own home…UGH…where does this stop? They tax smokers to help with what the government spends…then smokers are treated like dirt!!!
July 30th, 2009 at 10:45 am
I work in a pharmacy. Obesity is the biggest health problem in America. It causes diabetis, heart disease, strokes, breathing problems and in the long run is much more expensive for the insurance companies than smoking. If you die of lung cancer, it is a short period. Obesity related diseases go on for many years. The companies that ban smoking outside the work place just want to control your life the way they personally feel. It’s none of their business. Big Brother to the max!
July 30th, 2009 at 1:24 pm
What about the person who does not smoke but lives with a heavy smoker? Would they test positive for nicotine? If so, does the spouse or significant other have to stop smoking?
July 30th, 2009 at 4:13 pm
Is it fair to charge one employee a higher insurance premium as the result of the unhealthy choice of another? This boils down to personal responsibility. An individual must face consequences when their actions lead tot he detriment of others.
July 30th, 2009 at 4:16 pm
You people need to get a life!
July 31st, 2009 at 10:31 am
If companies ban smoking on and off work because of health reasons, I think companies should also ban obesity, motorcycle/bicycle ownership, eating too much sugar/carbohydrates, not sleeping enough, etc which are all detrimental to health and which actually is detrimental to efficiency in the workplace.
July 31st, 2009 at 10:43 am
In that light, working is actually bad for me, so I think we should ban working also. the government is allowing companies to have too much control over employees. people are becoming slaves. which was made absolutely illegal in 1865! Where’s Abe when we need him?
July 31st, 2009 at 10:51 am
Health insurance companies do not raise premiums based upon any unhealthy choice more than smoking. The blame lies with insurance companies who jack up premiums, not with employers who are simply looking out for innocent employees. You can argue all you want that employers have no right to make such decisions, but as for me, I will do what is in the best interest of my firm and current employees. That is as long as I comlpiant legally.
July 31st, 2009 at 11:12 am
In truth the medical industry is completely out of control with costs. some doctors make over 10 million a year, others make 100,000. Hospitals charges are crazy high because of the number of non-payers that arrive there and here is an example: my cancer treatment retail cost (before insurance got it discounted): $160,000, after insurance negotiated: $60,000. Even $60,000 was too much for 3 chemo treatments and 27 out patient radiation treatments. If I did not have INSURANCE, I would be DEAD DEAD DEAD today! My last GROUP health insurance quote: $28,000 per year. Now who the hell can afford that? Oh and I have NEVER smoked….smoking does not necessarily cause illness, mostly poor nutrition does. So if you eat and Mickie Ds, you should have very high health insurance. LOL
The point is, there is no one thing that causes health problems. I am just tired of being a slave to insurance companies.
July 31st, 2009 at 1:30 pm
That is the BIG reason that employers should not be delegated the responsibility for providing healthcare coverage for all Americans. It promotes actions by the employer to limit costs and preserve profits that interferes with an employee’s lawful activities and intrudes into privacy. Remember that employers offered healthcare insurance as a way to attract and keep good employees at a lower cost (they used their employee pool to bargain a lower cost than an individual would get) rather than simply offering higher wages.
Concerning the cost to employers by those who lead unhealthy lifestyles, I agree that smokers and obese people should pay a higher premium to cover their costs. It is only fair. That is American. Of course, research has shown that the real expense in healthcare occurs towards the end of life and that those living a healthy lifestyle tend to cost 10% to 26% more in lifetime healthcare costs than obese people and smokers. As most of these costs usually fall on the government Medicare/ Medicaid system when the person has spent down their assets (is destitute) and most of those who lead unhealthy lifestyles don’t benefit from the annual checkups, knee and hip replacements, quadruple bypass surgeries that the healthy people reap, they should be either be exempt from paying the Medicare/Medicaid taxes or be given a rebate that reflects their 10% to 26% savings in overall costs over their lifetime. Those who lead healthy lifestyles, should also have to pay their share as I understand the funds are getting scarce due to their living longer.
Of course, my experience with those who believe they lead a healthy lifestyle (most not all), tend to look down on those who make unhealthy choices and suffer from the dillusion that unhealthy lifestyles cost them money. All the facts in the world will not deter them from this false belief. I guess, if we had mental illness parity as part of our healthcare, they would cost even more, but that is another discussion.
July 31st, 2009 at 3:25 pm
interesting….you said “Of course, research has shown that the real expense in healthcare occurs towards the end of life and that those living a healthy lifestyle tend to cost 10% to 26% more in lifetime healthcare costs than obese people and smokers.”
who would have thought it, but I sure saw a lot of healthy looking people in the cancer docs office….
August 5th, 2009 at 9:54 am
The busin