Tuesday, May 20, 2008

Sarasota County Announces that It Will Not Hire Smokers; Medical Test Required for Employment to Confirm Non-Smoking Status

According to an article in the Sarasota Herald-Tribune, Sarasota County announced today that it will no longer hire smokers. In fact, the County will not hire anyone who has smoked within the past year. And the County will require that new hires prove their non-smoking status by submitting to a cotinine test.

According to the article: "To be considered for a county job, applicants will have to indicate that they have not used any tobacco products in the preceding year, according to a county press release. Prospective employees will also be screened for tobacco use during the physical examination for new hires, and any applicant with nicotine above a 'specified amount' in his or her system will be disqualified for employment, the press release says. The new policy will encourage county workers to have more healthy lifestyles and to keep the county from incurring higher insurance costs because of tobacco-related claims, the release says."

The Rest of the Story

While policies that deny employment to smokers are generally legal, the requirement Sarasota is imposing on new hires - that they submit to an invasive medical test to determine their cotinine level - represents an unwarranted invasion of privacy that just may prove to violate state right-to-privacy laws.

As I reported, A U.S. District Court judge for the District of Massachusetts ruled earlier this yearthat there are sufficient legal grounds for a lawsuit filed by a smoker against The Scotts Company to proceed based on the contention that the company violated the Massachusetts right-to-privacy statute. The plaintiff - Scott Rodrigues of Bourne, Massachusetts - was fired by Scotts after failing a urine cotinine test.The District Court ruled that there are sufficient grounds to proceed with the case to determine whether Rodrigues' firing violated Massachusetts privacy law.

At least in Massachusetts, an invasion of privacy complaint may well have legal merit. As Judge O'Toole pointed out: "Section 1B of Chapter 214 of the Massachusetts General Laws provides: “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” The right is broadly stated and it has been left to the courts to determine its scope. It has been held that the statute “proscribe[s] the required disclosure of facts about an individual that are of a highly personal or intimate nature when there exists no legitimate, countervailing interest.”

The lawyers for Scotts will argue that the company's interest in saving health care costs by not hiring smokers outweighs the interference with privacy entailed by requiring a prospective employee to submit to a urine cotinine test. However, my personal feeling is that there is simply no relationship between an employee's smoking status and his or her bona fide qualifications for employment with the Scotts Company. Thus, in my mind, the countervailing interest in this case is not legitimate, or at least, it does not outweigh the invasion of privacy regarding the lawful conduct of the employee in the privacy of his or her own home.

A ruling in Scotts' favor would open the door to all kinds of intrusive medical testing of prospective employees that has no relationship to bona fide job qualifications. If saving health care costs is found to be a large enough countervailing interest to justify intrusive medical procedures that require testing of bodily fluids, then all kinds of other intrusive medical testing are justified, not only cotinine testing.

For example, how about requiring diabetics to submit to a hemoglobin A1C blood test to make sure that their blood sugar is under control? How about requiring people at high risk of sexually transmitted diseases to provide specimens for testing to make sure they are not infected with various microbial agents? How about requiring female employees to submit to an HPV test to make sure they are not at risk for cervical cancer?

I hope that a potential Sarasota County employee who is denied employment based on a cotinine test brings an action under privacy law so that this potential legal claim can be tested.

Regardless of its legality, this policy is overtly discriminatory and inappropriate.

(Thanks to Lynda F. for the tip).

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