Can you get fired for smoking — at home?

One day in the fall of 2006, 30-year-old Scott Rodrigues arrived for work at the Massachusetts lawn and garden company that had hired him several weeks earlier, only to hear some bad news.

The results of a drug test required for employment showed that Rodrigues had ingested a substance expressly forbidden by company policy: nicotine.

Rodrigues knew of the company’s anti-smoking policy, but argued that he never smoked on the job; he only smoked at home. It didn’t matter. He was fired on the spot.

A few weeks later, Rodrigues filed suit in state court, the latest victim of a growing workplace trend: Beset by escalating health-care costs, employers are increasingly seeking to regulate employee behavior — at home as well as in the workplace.

“In the last couple of years we’ve seen a huge rise in employer actions based on off-duty legal activity,” says Jeremy Gruber, legal director of the National Workrights Institute, a nonprofit organization in Princeton, N.J.

Employment lawyers refer to this phenomenon as “lifestyle discrimination” — and they believe the practice will continue to spread.

Susan K. Lessack, a lawyer in Philadelphia, represents employers. She says that they are becoming “increasingly aggressive” about employee smoking — including off-the-job smoking.

According to Lessack, employers’ motivation extends beyond the greater likelihood that smokers will get sick and use health benefits.

“Smoking can also result in diseases, like emphysema and cancer. [But] then you get into a potential disability issue. Can you take action if somebody has emphysema? That gets kind of tricky,” she notes.

Extreme measures?

In some cases, employers’ attempts to preempt costly health problems among employees have led to some seemingly extreme actions.

For example, Weyco, an insurance benefits administrator in Michigan, launched a program to require mandatory breath tests for its 200 employees. The company said that any employees who tested positive for nicotine would be sent home without pay for one month, and if it happened a second time, they would be fired — no matter how long they had been with the company.

The company has since expanded the smoking prohibition even further, requiring monthly nicotine tests of spouses. A positive test means that the employee must pay a monthly fee of $80 until the spouse takes a smoking-cessation program and tests nicotine-free.

The Weyco policy has not faced any legal challenges to date, and employment lawyers say that’s because Michigan is one of 20 states that lack a “lifestyle protection” law that would curtail employers’ ability to regulate smoking and other behavior outside of work. That means employers have lots of latitude — because most employees are “at will” and can be let go for any reason if they’re not in a protected class.

Like Michigan, Massachusetts lacks a lifestyle protection law. But it has one of the strongest privacy laws in the country, and that’s the basis for Scott Rodrigues’ suit.

“We’re saying it’s not a legal policy under state privacy law,” says his Boston lawyer, Harvey Schwartz, who informs Exhibit A that the judge in the case recently issued a decision allowing the primary claim to proceed despite the company’s efforts to have the case dismissed.

“The way cases have come down in Massachusetts, you have to balance the employer’s need for information against the employee’s privacy rights,” he says. “We’re saying that the company’s interest doesn’t compare with [Rodrigues’] privacy interest.”

Schwartz is also making a “slippery slope” argument.

“If policies like this are acceptable, the next thing they’ll be testing for is cholesterol. Or they won’t hire you because both of your parents died of heart attacks when they were 45, or if you skydive.”

According to Gruber, of the National Workrights Institute, 30 states have lifestyle-protection laws in place, but they vary widely. Some are limited only to smoking; some cover only public employees.

Not just smoking

Smoking isn’t the only activity that employers are interested in regulating. In recent years, obesity has been identified as a widespread health problem, and, according to Connecticut lawyer Gary E. Phelan, employers are beginning to categorize the overweight with smokers as a potential drain on company health-care costs.

Phelan, who has successfully represented overweight workers in employment actions, says the key is to demonstrate that the worker has been perceived by employers as being disabled.

That tactic may be more difficult to apply in other situations, like smoking cases, Phelan says, but it’s not impossible.

“You might be able to tie the smoking to the perception that as a class of individuals they’ll be more likely to be unable to work at some point,” he says. “It’s difficult, but there are arguments to be made about employers perceiving them as being substantially limited.”

He also notes that at-will employment, which is the law in Massachusetts, doesn’t provide carte blanche for employers to do anything they want.

Termination of employees who engage in legal activity in their private lives could be considered “a violation of public policy,” he says.

One check on employers’ choices in this area is the fear that rules that are too restrictive can damage company morale.

“The problem you run into is: If you’re terminating people based on their use of nicotine, what about red meat?” Phelan says. “Do you start doing lie-detector tests on what they had for lunch? Even if [employers] can’t get sued for it, that doesn’t necessarily mean they should be doing it.”

Dick Dahl is a reporter for Lawyers USA. He can be contacted at dick.dahl@lawyersusaonline.com.