Civil Service Commission Upholds Termination of Fire Fighter Caught Smoking

In Morehouse v. Weymouth Fire Department, the Civil Service Commission agreed that the statutory ban on smoking applies to fire fighters hired before the law went into effect, but who then went to work for another fire department after the law went into effect. The Commission further agreed that smoking is an offense warranting, if not compelling, termination.
Chapter 41, Section 101A of Massachusetts General Laws prohibits police officers and fire fighters from smoking tobacco on or off-duty. This ban applies only to police officers or fire fighters appointed after January 1, 1988. This law has been frequently interpreted to be merciless – a public employer must terminate a public safety employee subject to the ban for smoking, regardless of the level or extent of tobacco smoking or the employee’s work history. No other public employees have their tobacco use regulated in such a manner. This strict prohibition is considered to be part of a deal that provides certain disability benefits to fire fighters and police officers. A heart-related condition that permanently disables a public safety officer is presumed to be work-related. Much as no other public employees are subject to a ban on smoking tobacco, no public employees other than fire fighters and police officers are eligible for a heart presumption for disability retirement.
In this case, the fire fighter started working as a part-time call fighter in 1985, well before the ban on smoking tobacco went into effect. He worked for a variety of departments over the years, before being laid off by Springfield, a civil service community, in 2003. Under civil service law, he received a priority to be considered by any civil service community in the Commonwealth. As such, Weymouth hired him in 2003. In 2011, Weymouth caught him smoking and terminated him.
The Commission concluded the fire fighter was appointed by Weymouth, for purposes of the statute, in 2003 and therefore was subject to the ban on smoking tobacco. In other words, it did not matter to the commission that the employee starting paid work as a fire fighter well before the statute went into effect.
This case has a direct impact only on those fire fighters or police officers who smoke, started working in public safety before 1988, and changed employers since January 1, 1988. But the case also serves as a cautionary reminder to any public safety officer hired after January 1, 1988 about the severe and dramatic consequences for smoking tobacco.