This interesting case is in the federal district court in Massachusetts. The employee was discharged for smoking while off-duty under an employer policy prohibiting all smoking, even outside of the workplace. A copy of the opinion can be found here, and an article about the case is here. The ruling states merely that discovery should proceed on an ERISA Section 510 claim and a state privacy law claim before a final ruling is reached on whether the claims can go forward. I expect that the ERISA Section 510 claims eventually will be dismissed, if not by the district court then by the Court of Appeals. Section 510 addresses employment actions taken with the specific intent of interfering with the employee’s ERISA benefits. It does not apply where–as is apparently the situation in this case–the loss of benefits was a mere consequence of but not a motivating factor behind a termination. The privacy claim will be interesting to watch. Some states, such as New York and California, have statutes that would prohibit termination based on lawful off-duty recreational activities.