# Fired For Smoking Cigarettes?



## kwflatbed (Dec 29, 2004)

_Employee Questions Company's Policy_

*BOSTON -- *If you're an ethnic minority or a pregnant woman, you're protected by law from discrimination in the workplace. But what if you're a smoker?

Team 5 Investigates has found employers can legally extinguish your employment for a host of reasons that have nothing to do with your job performance.

NewsCenter 5's Sean Kelly reported that Scott Rodrigues has been smoking for 15 years. He said that he didn't expect to hear, "You're fired." ​
"They said, 'Because you have nicotine in your system, you're fired"'" Kelly said. 
"I said, 'Well, I'm going to try and call corporate and see what I can do about it.' And they said, 'Well, actually, you are terminated. There's nothing you can do about it," Rodrigues said. 
Last month, Rodrigues was still considered a new employee by the company, Scotts Lawn Service in Sagamore Beach. He had a uniform and earned a paycheck. Then, the results of his drug test showed that he's a smoker. 
"They were trying to have a smoke-free company, but no one explained to me that they'd be drug testing for nicotine," he said. 
That means employees cannot smoke at work or in their private life. Scotts said it is paying to help current employees quit. Rodrigues' boss showed him the door. 
"They're legal, and if we can smoke cigarettes legally, I don't think they should be able to say, 'We don't want people smoking, so we're going to give you a drug test now, and if you have nicotine in your system, you're done,'" Rodrigues said. 
According to the company, it's an economic issue. The company said it is trying to reduce escalating health care rates, and it claims each smoker could cost the company an additional $4,000 a year. That raises insurance premiums. Representatives said, "It's unfair for us to ask our employees to pay for the cost of smoking." 
"The question isn't just smoking off the premises. The question is, can an employer regulate an employee's behavior when the employee is not on the job?" Boston University health law professor Leonard Glantz said. 
Glantz called it bigotry. First, it's the smokers; next, it could be people who are obese, skiers or people who ride motorcycles. Don't they present health risks, he asked? 
"Can an employer say, 'If you have a bumper sticker on your car for a Democrat, that I am going to fire you because I think Republicans are better for my business'? Those arguments are exactly the same as the argument for restricting smokers," Glantz said. 
At least 28 states have laws against firing smokers. Some of them restrict employers from banning any legal activity a worker does during off hours. Massachusetts is not one of them, which means the chance of Rodrigues getting his job back has all but burned out.

Related To Story


*Video: *Fired For Smoking?

_Copyright 2006 by TheBostonChannel.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed._


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## CJIS (Mar 12, 2005)

Belive it or not their is a law in the books that states once employed as a Police officer in MA you can't smoke.


No person appointed on or after January 1, 1988, who smokes any tobacco product shall continue in office as: a uniform officer of the state police; an employee of the Department of Corrections whose regular or incidental duties require the care, supervision, or custody of prisoners and criminally insane persons; a city or town police officer or firefighter; or an investigator or examiner empowered to perform police duties for the Registry of Motor Vehicles. (MGL C. 22 S 9A, C. 27 S. 2, C. 41 S. 101A, C. 90 S. 29)


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## Gil (Jun 15, 1998)

Here is a question that comes up a few times.

Your appointed as an officer in 1987, so you can smoke. Now you take the promotional exam and are now promoted to the rank of Sergeant in 1995.

What takes precedence? Your 87 appointment or your 95 appointment? Some say that if you are promoted after 1988 you fall under the law and are not allowed to smoke, others disagree. Thoughts???


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## 94c (Oct 21, 2005)

Gil said:


> Here is a question that comes up a few times.
> 
> Your appointed as an officer in 1987, so you can smoke. Now you take the promotional exam and are now promoted to the rank of Sergeant in 1995.
> 
> What takes precedence? Your 87 appointment or your 95 appointment? Some say that if you are promoted after 1988 you fall under the law and are not allowed to smoke, others disagree. Thoughts???


I vote for the original appointment date. I don't know of anyone that has been promoted that was told he/she had to now stop smoking.


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## Curious EMT (Apr 1, 2004)

F-him.

You can terminate anyone for anything, or nothing at all (generaly).

It's likely the company got sick of smoker's multiple smoke-breaks throughout the day, saw it as a loss, and said no-more.


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## tazoez (Dec 9, 2005)

A better question -- they test for nicotine correct....
I quit smoking about a month ago with the help of the patch. Does that mean that I will be fired for having nicotine in my system? or better yet, my mother smokes as well as my girlfriend. Will I be fired because of that too?


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## 209 (Jun 18, 2005)

Gil said:


> Here is a question that comes up a few times.
> 
> Your appointed as an officer in 1987, so you can smoke. Now you take the promotional exam and are now promoted to the rank of Sergeant in 1995.
> 
> What takes precedence? Your 87 appointment or your 95 appointment? Some say that if you are promoted after 1988 you fall under the law and are not allowed to smoke, others disagree. Thoughts???


Yeah but if you look at it that way, we are re-appointed every year in May so then no one could smoke if that were the case. Not sure if any other Dept. works this way, I figured ours does so the Town can have more control over the Officers....ie: they dont like one they can just not re-appoint them v.s. having to fire them and have a long drawn out court battle/media frenzy.


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## j809 (Jul 5, 2002)

It is your original appointment date Gil.


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## Mongo (Aug 10, 2006)

So long as they don't tell me *NO* *BEER *everything gonna be allright.


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## Curious EMT (Apr 1, 2004)

The only test i have seen (or had) for smoking was an oral swab, not sure if its the nicotine they are testing for, or other products of smoking, or if nicotine would be present in saliva if introduced to the body from patch. 
What about people that chew? The ONLY route of absorbtion is throught the mouth....


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## 193 (Sep 25, 2006)

If you are caught, claim you are chemically dependent on nicotine and deem yourself a problem get help and go back to work or sometimes retire with pay and state you are no longer fit for duty, I've seen it believe me! Although this wasn't nicotine it was pain pills. Ha Ha!


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## tommym27 (May 31, 2006)

you can't claim to be chemically dependent on cigarettes. you will still be fired. you could get caught blowin lines and they have to pay for treatment and help, but not so much for the butts...pretty silly stuff


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## 94c (Oct 21, 2005)

tommym27 said:


> you can't claim to be chemically dependent on cigarettes. you will still be fired. you could get caught blowin lines and they have to pay for treatment and help, but not so much for the butts...pretty silly stuff


cigarette smoking is now outlawed in many if not all public places.

But it's o.k. to walk around with a pocketful of dirty needles.


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## Irish_Cop_In_Va (Aug 14, 2006)

Anyone got a smoke on 'em? I'm craving a drag after reading all these posts.


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## Irishpride (May 5, 2002)

193 said:


> If you are caught, claim you are chemically dependent on nicotine and deem yourself a problem get help and go back to work or sometimes retire with pay and state you are no longer fit for duty, I've seen it believe me! Although this wasn't nicotine it was pain pills. Ha Ha!


Sad part is if an officer got caught smoking crack he/she could do this but it is not an option for cigarettes. Civil service interprets the smoking statue to mean that once the appointing authority is aware of an officer who smokes the officer must be terminated, and alternatives such as a second chance and rehab are not an option.


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## O-302 (Jan 1, 2006)

Civil Service case upholding a firing for smoking:

http://www.commonwealthpolice.net/news/smoke.pdf

Civil Service questions and answers regarding smoking:

http://www.commonwealthpolice.net/news/smoking.pdf


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## Gil (Jun 15, 1998)

O-302 said:


> Civil Service case upholding a firing for smoking:
> 
> http://www.commonwealthpolice.net/news/smoke.pdf
> 
> ...


Goes back to my question about promotions....



> In
> *Town of Plymouth v. Civil Service Commission, *426 Mass. 1 (1997), the SJC held that a police officer hired after or _*promoted*_​
> 
> _*after January 1, 1988*_ who smokes or otherwise uses tobacco products shall be subject to mandatory termination.​​​


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