Smoking In The Workplace – Even Off Hours?

A Massachusetts employer decided to ban employees from smoking. Even when they aren’t at work. And finally terminated an employee whose urine tested positive for nicotine.

Needless to say, the employee sued under a novel concept: that the termination may constitute an interference with that employee’s right to participate in the company’s benefits plan in violation of the Employee Retirement Income Security Act (ERISA).

Trying to save a few dollars in health insurance by banning employees’ smoking all the time may seem like a good idea, but I suspect the money they saved will be nullified by the court battle that’s ensuing.

Generally speaking:

  • You can ban employees from smoking in the workplace (most states prohibit smoking indoors).
  • You can limit employees’ rest breaks – i.e. a smoke break – to the minimum allowed by state law (normally 10 minutes for every four hours worked)

But overly prohibiting off-premises conduct is not a good idea.

From Thomas J. McCord, Gary J. Oberstein, Renee M. Jackson of Nixon Peabody.

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