We’ll definitely get back to our ongoing series on South Carolina’s employment handbook cases but first, a note from the blogosphere about a fascinating pending suit in which an employer’s interest in a healthy workforce smacks headlong into an employee’s right to control his own body.

 First the story, from the Boston Herald: Seems Scott Rodrigues was fired from The Scott Company (no apparent relation, other than the employment itself) for failing a drug test. That’s a sad but not uncommon occurrence in this day and age. The interesting slant to this tale is the drug itself. Not crack cocaine, or heroin, but nicotine.  That’s right - Mr. Rodrigues was fired for smoking. Not for smoking on company time, mind you, or smoking unsafely, or even taking too many smoke breaks. Mr. Rodrigues was fired for being an habitual user of nicotine.

This, apparently, is The Scott Co.’s policy. Management sees it as a cost issue and takes umbrage at being asked to underwrite the presumptive costs associated with a smoking habit - health costs, one presumes, although there doesn’t seem to be any indication that Mr. Rodrigues was any more or less healthy than his nonsmoking counterparts. (Interestingly, the VP interviewed for the article copped to being a cigar smoker himself. The difference, he pointed out, was “habitual use.”)

Out of the Jungle says “I found it pretty disturbing that an employer would think it right to control employees’ private behavior. It leads to all sorts of disturbing scenarios that have been raised as testing for various diseases and genetic pre-disposition for disease became possible.” That post also presents a fascinating list of resources on this issue.  There’s more from Worker’s Comp Insider in this post.

In South Carolina, section 41-8-85 states that “[t]he use of tobacco products outside the workplace must not be the basis of personnel action, including, but not limited to, employment, termination, demotion, or promotion of an employee.” Thus, the firing of Mr. Rodrigues would be impermissible under South Carolina law. I believe a good argument could be made to extend this section to such actions as requiring additional payment of premiums for health insurance, although that is far from clear from the language itself, which specifies only concrete changes in employment status, and does not include benefits of employment.

Thanks to Jottings from An Employer’s Lawyer for the reference.