Good sense or meddling? Scotts’ no-Smoking policy tested in court

Marysville-based Scotts Miracle-Gro faces a discrimination suit from a lawn care technician fired last fall after testing positive for nicotine in violation of the company’s tobacco-free workplace policy.

The company issued a policy in March 2006 stating that Scotts will not hire people who smoke on or off the job, and will seek to eliminate smoking in its existing work force.

The firm informs all prospective employees of its policy and makes all job offers contingent on passing a drug test, including for nicotine. The technician joined the company in August, but two weeks later was fired when his test results came back. The technician said he had planned to quit smoking as an example to his four-year-old son and was drawn to Scotts because of its commitment to employee health.

The Scotts no-smoking plan is part of a larger employee wellness program, which includes state-of-the-art health facilities and counselors available to employees who engage in a health-risk assessment. Medical professionals make suggestions based on individual assessments, and employees then must agree to follow them or pay higher insurance premiums.

Note: Regulating off-duty behavior is uncharted territory. In fact, some states strictly prohibit employers from regulating any legal behavior employees engage in after hours. The policy also raises issues under the ADA, which requires individual assessment of an employee’s current health and prohibits discrimination based on potential future health conditions.

Meanwhile: Ohio’s statewide ban on smoking in public places has employers scrambling to find smoking-cessation programs to help employees quit. Employers will have to post no-smoking signs at all entrances and exits and in company vehicles. Enforcement is unlikely before May.