To be able to fire someone who engages in a LEGAL activity away
from work at his home?
Well there is something really wrong with this and I think that If they pursue this the courts will agree with them.
I will refrain from commenting on the wisdom of relying on the Courts to vidicate rights that are not enumerated by the duly elected legislatures.
Under the common law you could be fired for any reason whatsoever, or no reason whatsoever. The so-called "at-will" employee. This has been modified by Federal and State law--insofar as it identifies certain groups, and activities that are per-se illegal to base personel actions on, e.g. race, color, religion, gender.
A quick search of federal and state laws demonstrates that smoking, and indeed smokers, are not an activity or population that are protected from arbitrary termination.
The idea that one can engage in activities, legal or not, with impunity (no consequences) is a uniquely modern concept. If one chooses to smoke, they are welcome to (for the time being), however, if they are not protected from the consequences of such actions, e.g. higher health premiums, ridiclue from more intelligent life-forms, and it seems termination from thier place of work.
The more intelligent argument would point out that several of these employees had been hired as smokers, a fact known to management, and that to change the rules mid-stream breeched an implied contract of employment . Thus making the termination illegal under a contract theory.
