Question for DU Lawyers... Companies firing people for smoking

[MattBaggins]

Sorry to start a new thread, but I would like to here from any DU lawyers.

Will firing smokers hold up in court. Please play devils advocate and give reasons for both if you can.

I would also like to know if this re-opens the Tobacco companies for lawsuits from people who loose their jobs do to an addictive substance. Are the cases against the big wigs finished or would this be new enough to merit new lawsuits?

[sui generis]

1. where is this happening? which companies?

just curious.

[Sequoia]

7. See below for info:

LANSING, Mich. A Michigan health-care company has fired four of its employees -- for refusing to take a test to determine whether they smoke cigarettes.

The company enacted a new policy this month, allowing workers to be fired if they smoke -- even if the smoking takes place after-hours, or at home.

The founder of Weyco Incorporated says the company doesn't want to pay the higher health care costs associated with smoking.

An official of the company -- which administers health benefits -- estimates that 18 to 20 of its 200 employees were smokers when the policy was first announced in 2003. As many as 14 of them quit smoking before the policy went into effect.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

from the KRON4 TV (San Fran-Happy-sisco) website yesterday

[sui generis]

27. that's a clear invasion of privacy

they need to sue both the insurance company and the employer.

1. Insurance is voluntary. It seems the testing was not.

2. In theory they shouldn't be singling out smoking. Over eating, singles screwing without rubbers, being single, skiing without a helmet, having more than two direct relatives die of cancer within the past 50 years, WHERE DOES IT STOP?

[MuseRider]

2. How do they know

that the person is smoking at home? Maybe they are on the patch or gum. This just seems way out there but I am not a lawyer. Besides, it is on their own time, I can't see how this holds up. Insurance maybe?

[cheezus]

3. drug test them for nicotine

they can test for other drugs as a condition of employment, why not nicotine?

[ChairOne]

4. Why not nicotine? How about because nicotine is *legal*....

I can sorta see companies kicking smoking employees off their health plans, but firing seems waaaaay extreme...

(I'm a smoker, btw.)

[cheezus]

10. ah, so it's okay for companies to test you for breaking the law...

like a drug test

how about employment being subject to a full search of your property, to make sure you don't have child porn or are distilling liquor?

[ultraist]

11. I'm not an attorney but...

What does this have to do with the price of tea in China? "how about employment being subject to a full search of your property, to make sure you don't have child porn or are distilling liquor?"

Smoking compromises employees' health, thus on the job performance. It has nothing to do with searching their homes, it is a huge overgeneralization to make that connection.

Companies can chose not to hire someone (or fire someone) who does certain recreational drugs, nicotine is a drug as is alcohol.

[Misunderestimator]

17. So you would advocate a company firing someone who drinks one beer

a week? There are many things that compromise ones' health, such as eating fast food... should we start firing people who have cholesterol levels higher than say... 180? Seems to me that that group would be a much higher risk for on-the-job-performance failure.

[sierrajim]

20. Making homemade hooch is legal without paying tax on it

up to one gallon per year per adult in your household.

[cheezus]

22. you sure about that?

my understanding was 100gal per person(or 200 gal for 2 adult household) per year, for beer and wine. my understanding was that home distilling was not legal

[sierrajim]

26. I know beer and wine is more in quantity

I was talking about hard liquor like whiskey.

[cheezus]

28. here's what the atf says

http://www.atf.gov/alcohol/info/faq/genalcohol.htm#g1

Spirits
You cannot produce spirits for beverage purposes without paying taxes and without prior approval of paperwork to operate a distilled spirits plant. There are numerous requirements that must be met that make it impractical to produce spirits for personal or beverage use. Some of these requirements are paying special tax, filing an extensive application, filing a bond, providing adequate equipment to measure spirits, providing suitable tanks and pipelines, providing a separate building (other than a dwelling) and maintaining detailed records, and filing reports. All of these requirements are listed in 27 CFR Part 19.

Spirits may be produced for nonbeverage purposes for fuel use only without payment of tax, but you also must file an application, receive ATF's approval, and follow requirements, such as construction, use, records and reports.

[ChairOne]

21. Do you understand the difference between a necessary and

a sufficient condition?

A *necessary* condition of it being "ok" for a company to inquire anything about you that isn't directly and importantly job-related is that it be illegal.

That says nothing about what *sufficient* conditions might be for such inquiry (and I'm not sure myself).

[Lone_Star_Dem]

5. There are other ways to get nicotine in the bloodstream

A person could be addicted to the gum or patch for instance. :shrug:

Nicotine is not a controlled substance and is not considered a health issue without the problems that come from the tobacco products.

[MuseRider]

6. That was my point.

I just don't see how this will work but that certainly does not mean they won't do it.

[China_cat]

13. Because nicotine is LEGAL.

[GumboYaYa]

8. Obesity has been found to be a disability under the ADA.

It seems that smoking, an addiction, could also easily be found to be an disease that is subject to the ADA. If that is the case, then firing for smoking would most likely not be permitted.

[ultraist]

12. Drug & alcohol addiction is a disease according to the AMA

But, an employer can still fire an employee for alcohol use. Just because it is a disease as stipulated by the American Medical Assoc, doesn't mean an employer has to allow someone to be drunk on the job.

Some states do not consider it a disability though. I believe that MN is one of the few that do. Not all conditions/diseases qualify as a disability.

Smoking addiction has not been determined to be a disease as has drug/alcohol addiction.

[China_cat]

14. But, an employer can still fire an employee for alcohol use

ON THE JOB. What employer would even think of firing someone for drinking at home outside of work hours? What employer would expect an employee to submit to a test to see if alcohol is being used away from the worksite?

[TwentyFive]

9. It seems you are asking 2 questions

1. Can a company fire an employee because they are a smoker.
2. Can an addicted smoker collect damages from a tobacco company because they got hooked on their addictive substance - and lost their job as a result.

For #1, I'd say a company would be within their rights of firing the employee - if - they could prove job performance was negatively affected by the smoking, or the smoking had a negative effect on the other employees or company reputation. They would also have to warn the person about their smoking before firing them. An example might be a retail worker who consistently smoked just outside the door on their break. If the smoke came back into the store, and disturbed customers or smelled up the store (causing a loss in sales) - the store can rightfully terminate the employee.

For #2 to be successful, you'd have to prove that smoking addiction is a debilitating and unalterable disability. So, you'd have to prove the claimant is unable to acquire other employment and is unable to quit smoking - which would be very difficult.

[WillowTree]

15. In an 'Employment At Will' state...

....it probably would hold up in court. In such states, an employer can let an employee go at any time for virtually any non-discriminatory reason. Since smoking is a choice and not an inherent trait, I doubt that it could be considered a legal basis for a charge of discrimination.

For instance, it would be against the law for a restaurant to say that blacks or women or gay folk must sit in a separate area, but it is completely legal for them to tell smokers that they will be segregated to a 'smoking section' (in those places where smoking is allowed at all in restaurants) if they choose to smoke.

And I say that as a smoker.

[Ms. Toad]

24. Bingo...

In an at will employment state - which I believe is still the majority of states - an employee can be fired for any reason whether or not it is job related unless:

The employee is being fired for being a member of a protected class or engaging in a protected action prohibits it (gender, age over 40, disability or perceived disability, some out of work hours speech,union organizing, race, etc.),

An express or implied employment contract creates additional due process rights,

against public policy (can't fire for whistle-blowing, for example), or

done in bad faith/or is inconsistent with principles of fair dealing.

(The last three are not universal exceptions - some states honor them, some don't, and the things which constitute public policy for example will vary even among states that prohibit firings that are against public policy)

The reason does not have to be choice based (e.g. a choice to smoke). If your employer only wants brown eyed individuals and you have blue eyes (not a choice) you can be terminated even if you are the absolute best at your job and make your company tons of money. Your employer would be stupid to fire you - but s/he is unfortunately within his or her rights.

(Now, if your employer only wanted blue eyed individuals you might be able to establish that preference is pretextual for racial selection given that the majority of blue eyed individuals also happen to be fair skinned...sometimes you can be creative.)

Edited to add the last two common-law (court created) exceptions to at-will employment.

[musiclawyer]

16. Very novel

Regardless of what legal theories the Plaintiff lawyer uses(constitutional tortish, civil rightish, or wrongful terminationish), the Defense will say that there was a legitimate business reason for doing so. Well the only one I can think of is the bottom line. But I actually think the Defense can win if this was all contractual( well known to employees who signed on anyway). Now if this was just rammed down the employees' throats, Plaintiffs should win--e.g. implied covenant of good faith and fair dealing. I actually expect to see this as the rule not the exception in the workplace within a generation at most.

[Nikia]

18. My birth town's police department prohibits smoking

I don't know how long this has been a rule, but obiviously after my die hard cigarette smoking grandfather retired from there almost 20 years ago. I suppose that they got away with this rule because police officers are supposed to set an example and be in good physical shape. The no smoking prohibition is on their recruitment website. I have no idea if officers who had worked for the department a long time had to quit.

[TNMOM]

19. I think an employer can fire you without giving you a reason

at all in some states.

[ultraist]

23. Not in my state

We have to have a reason to fire an employee, (ie poor performance) and document warnings using standardized disciplinary procedures. Even then, they always get unemployment which jacks up our rates.

We can lay people off but we cannot replace that person in that same position.

[Ms. Toad]

25. Montana?

According to one reference I found that appears to have been updated this year, Montana is the only state that is not an at-will employment state (although many of the other states that are at-will states have a number of statutory or common law exceptions).