Summary of Investigation

Cohen Milstein is currently conducting an investigation concerning companies that target and discriminate against smokers in two different ways.  First, companies that terminate smokers or discriminate against smokers.  Second, companies that charge smokers more for health insurance than non-smokers.

Termination of Smokers

A policy that terminates smokers who smoke off-duty and off-premises may violate the Employee Retirement Income Security Act (“ERISA”) and/or state law.  In more than half the states and the District of Columbia, state law makes it illegal for companies to impose smoking bans on their employees when they are off duty.  In addition, ERISA prevents employers from discriminating against and/or firing employees – here, smokers – in order to interfere with the attainment of any right under a benefit plan – here, the right to health benefits.  If a violation can be proven, reinstatement as an employee, reinstatement in the benefit(s) plan, and/or reimbursement of premiums (including back benefits) may be available as equitable relief under ERISA (although the scope of available relief under ERISA remains controversial).

Recently, a number of companies, including Weyco and The Scotts Company, have instituted policies to terminate smokers, even if those persons do not smoke at work.  The reason cited by companies such as Weyco and Scotts for adopting these policies is increased healthcare costs for smokers.  While companies make claims that employees who smoke impose higher costs on employers, there does not appear to be any actual, reliable data that support those claims.  Both liberal and conservative civil liberties groups have denounced these policies as an improper invasion of employees’ rights to conduct activities on their off hours.  (For more information, click here)

Smoker Surcharges on Health Premiums

A number of companies have begun charging smokers more for health insurance than non-smokers.  A growing number of employers require employees who use tobacco to pay higher premiums, hoping that this will motivate them to stop smoking and thereby lower the company’s healthcare costs.  Among the firms reported to have such policies are Cardinal Health, J.P. Morgan Chase, Meijer Inc., Gannett Co., American Financial Group Inc., PepsiCo Inc. and Northwest Airlines.  Under the Affordable Care Act and DOL Regulations, such surcharges may be permissible if they meet certain restrictions and guidelines; however, if the surcharge does not meet those guidelines, the surcharge may not be permissible and if it is not, then it may be possible to seek return of the surcharge and to prevent the surcharge in the future.

What Information Do We Need From You

In order for us to investigate your claim, you must be a current or former employee of a company with such a policy and fall into one of the following categories:

  1. A smoker currently employed at a company which has a policy to terminate employees who smoke (even if you have not yet been terminated) or a smoker terminated by a company as a result of a no-smoking policy; or
  2. A smoker currently employed at a company which imposes higher healthcare premiums on smokers than non-smokers.

Whom to Contact for More Information

If you are a current or former employee who was terminated or discriminated against because of smoking, please contact one of the following persons:

R. Joseph Barton, Esq. jbarton@cohenmilstein.com 
Ming Siegel, Paralegal msiegel@cohenmilstein.com
Cohen Milstein Sellers & Toll PLLC
1100 New York Avenue, N.W., Suite 500
Washington, D.C. 20005 
Telephone: 888-240-0775 or 202-408-4600