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.
