New England Biz Law Update
One day last fall, 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 Rodrigues had ingested nicotine – a substance expressly forbidden by company policy.
Rodrigues knew of the company’s anti-smoking policy, but argued 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,” said 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 partner in the Philadelphia office of Pepper Hamilton, represents employers. She says 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 noted.
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 Okemos, Mich., launched a program in January 2005 to require mandatory breathalyzer tests for its 200 employees. The company said 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, regardless how long they’d been with the company.
The company has since expanded the smoking prohibition even further, requiring monthly nicotine tests of spouses. A positive test means 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, since most employees are “at will” and can be let go for any reason if they’re not in a protected class.
“What sounds pretty outrageous doesn’t necessarily make it illegal,” noted Gary E. Phelan, a partner in the Stamford, Conn., office of Outten & Golden. “People probably go to lawyers, but the lawyer tells them it’s probably unfair, but not unlawful.”
Steven D. Sugarman, a professor at the University of California School of Law, said employers have legitimate interests in their employees’ off-work behavior.
The employee who comes to work drunk may have a difficult time winning an argument his personal drinking activity should be none of his employer’s business.
“Certainly, some off-work behavior should be protected,” Sugarman said. “But not all of it.”
Massachusetts, like Michigan, also lacks a lifestyle protection law. But it has one of the strongest privacy laws in the country, which is the basis for Scott Rodrigues’ suit.
“We’re saying it’s not a legal policy under state privacy law,” said his lawyer, Harvey Schwartz, a partner in the Boston firm of Rodgers, Powers & Schwartz.
“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 said. “We’re saying 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.
“There has been case law,” he said, “but it’s not extensive and it’s unclear why that is. To be honest, I think it’s because [the statutes] are not very well known. It’s clear from the anecdotal evidence employers have been using off-duty conduct for many years as a criterion for making employment decisions.”
Despite the lack of case law, Lessack cautioned that even employers in states without employee-friendly lifestyle statutes might want to be cautious in instituting non-smoking or other lifestyle-driven policies, because they must be enforced uniformly.
If this isn’t done, she said, there’s a danger the employer will be accused of using the policy as a pretext for firing someone they don’t like, while affording leniency to others.
Not just smoking
In recent years, obesity has been identified as a widespread health problem, and, according to Phelan, employers are beginning to categorize the overweight with smokers as a potential drain on company health-care costs.
Lessack agreed this is an emerging issue. “There’s a lot of speculation about where you should draw the line. Should you try to restrict other ‘risky activities’ like hang gliding or overeating?”
Phelan, co-author of the widely read treatise, “Disability Discrimination in the Workplace,” has successfully represented overweight workers in employment actions, and he says plaintiffs’ counsel will try to demonstrate 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 said, but it’s not impossible.
“You might be able to tie the smoking to the perception that as a class of individuals they’re more likely to be unable to work at some point,” he said. “It’s difficult, but there are arguments to be made about employers perceiving them as being substantially limited.”
He also noted that at-will employment, which is the law in every state except Montana, 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 said.
However, public-policy arguments tend to be interpreted very narrowly, Phelan acknowledged.
Employers’ choices in this area may be curtailed somewhat due to a fear that restrictive rules 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 said. “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.”
A bipartisan measure introduced in Congress last September might have had some impact on the issue, because it would have strengthened the protections of the ADA. This could have impacted lifestyle discrimination claims if “disability” was interpreted more broadly as providing protection for people who believe they were not hired or fired on the basis of personal behavior or body size or family health history.
But the bill, sponsored by then-House Judiciary Committee Chairman F. James Sensenbrenner, Jr. R-Wis., and then-House Minority Whip Steny H. Hoyer, D-Md., did not have a companion measure in the Senate and died. However, Phelan thinks it may fare better this year with the new Democratic Congress.
