Smoker’s Lawsuit Against Prospective Employer Dismissed

By Staff Report

Aug. 13, 2009

A case involving a prospective employee who was not hired after he tested positive for nicotine will have only marginal impact on the types of wellness plan incentives employers use to encourage healthier behaviors, though it does highlight areas that require caution, benefits experts say.

A U.S. District Court judge in Boston on July 23 dismissed a lawsuit that was filed by Scott Rodrigues in 2006 against Scotts Co. when the Marysville, Ohio-based lawn and garden product maker rescinded an employment offer contingent on a drug test that found nicotine in his urine, a violation of company policy barring employees from smoking on or off the job.

In his suit, Rodrigues charged that the company violated his right to privacy as well as the Employee Retirement Income Security Act, which protects workers’ rights to employee benefits.

However, Judge George A. O’Toole Jr. said Rodrigues admitted in a deposition that he smoked and did not try to keep his habit private. Moreover, the judge said ERISA did not apply because Rodrigues was not yet an employee and was working only on the condition that he pass the drug test.

Because the case did not involve the employee’s participation in a work-site wellness program, it is not likely to influence employers’ decision to use punitive approaches to force their employees to abandon unhealthy behaviors, benefits experts say.

“I don’t think employers can take any comfort in this case,” said Anne Waidmann, director of human resource services at PricewaterhouseCoopers, based in Washington. “The case was very narrow and was pursued under ERISA. But ERISA does not protect people who aren’t yet employees.”

Waidmann said employers should be more concerned about a March letter that the Equal Employment Opportunity Commission sent to an employer that, as a condition of participating in its health benefit plan, required completion of a health risk appraisal consisting of a health-related questionnaire, a blood pressure test and a blood panel screening. The EEOC said requiring an employee to complete a health risk assessment to be eligible for health care coverage violates the Americans with Disabilities Act.

“I think employers still need to be cautious about wellness programs. You could end up discriminating against people with disabilities,” Waidmann said.

Sharon Cohen, group and health care benefits counsel at Watson Wyatt Worldwide in Arlington, Virginia, said the ruling in the case of the prospective employee has limited precedent value because it was made by a federal judge, not the U.S. Supreme Court.

“Some states have lifestyle protection laws, but Massachusetts is not one of them,” which allowed the court to rule in the employer’s favor.

Still, employers considering implementing an anti-smoking policy can look to this case and use it as a template, Cohen said.

“This lays down some groundwork for employers that they need to have a policy in place and that it needs to be very clear, with everything put in writing,” she said.

Ed Fensholt, senior vice president and director of compliance services at Kansas City, Missouri-based Lockton Benefit Group, said employers likely will find the case “interesting, but it could have been a whole lot more interesting if Rodrigues had actually been a participant in the health plan,” or “if one of the motivating factors [of Scotts not hiring Rodrigues] was that Scotts didn’t want to incur additional costs to its self-insured plan.”

“It doesn’t really decide anything for employers,” Fensholt said.

Ray Brusca, vice president of benefits at Towson, Maryland-based Black & Decker Co., agreed that the case is “interesting.”

However, “I think most employers will shy away from taking such a hard line because they just do not want to have to litigate these very costly legal battles and do not want the associated publicity,” he said.

Scotts did not return calls seeking comment.

Filed by Joanne Wojcik of Business Insurance, a sister publication of Workforce Management. To comment, e-mail

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