A former employee filed suit against Scotts LawnService for violation of his right to privacy under Massachusetts state law after Scotts fired him for testing positive for the use of nicotine. Scotts prohibits employees from using tobacco at any time and it is Scotts’ policy not to hire tobacco users. When the employee was hired, he provided a voluntary urine sample, and after the sample tested positive for nicotine, he was fired. Following his termination, the ex-employee filed suit for violation of Massachusetts’ state privacy law, which provides: “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” The court granted summary judgment in favor of Scotts, finding that the former employee did not have a protected privacy interest in the fact that he is a smoker because he has not attempted to keep that fact private. The court held that an individual’s right to privacy is not invaded if the facts at issue “are already in the public domain.”

TIP: When administering drug tests, take care to ensure that the test is being administered in accordance with applicable state and/or federal laws.