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No smokers allowed.

The stories InsideCounsel covers often continue developing long after we write about them. Here are the latest updates.

"Health Hazards," July 2007 (Labor)

Then:

In 2006, Scott Rodrigues started a job at Scotts LawnService in Sagamore Beach, Mass., on one condition: that he pass a test showing he was drugand nicotine-free. The company had a wellness policy prohibiting employees from smoking on or off the job. Scotts fired Rodrigues when the nicotine test came back positive. Rodrigues sued the company in January 2007 for alleged privacy and civil rights violations.

Now:

A Massachusetts federal district judge ruled against Rodrigues July 23 in Rodrigues v. EG Systems Inc. d/b/a Scotts LawnService. Judge George O'Toole dismissed the plaintiff's privacy claim because he was open about smoking. The judge also dismissed Rodrigues' ERISA discrimination claim because he always knew the job was contingent upon not smoking.

"Section 510 [does not] forbid discrimination by means of a decision not to hire," O'Toole wrote, explaining that the company's decision to let Rodrigues start work contingent on passing the test means that he was never truly hired.

By mid-August, Rodrigues had appealed the decision.
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Title Annotation:LEGAL UPDATE
Author:Danzig, Christopher
Publication:InsideCounsel
Date:Oct 1, 2009
Words:190
Previous Article:Red flag fight.
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