It was a windfall for Police Officers and Firefighters in the most recent session of the State Legislature and it came at the expense of Employers and consistency in the law. In our September Advisor, we told you about the law taking effect October 22 under which a Firefighter will get the benefit of the cancer presumption–something previously only available for a disability retirement–for 41-111F claims. In the very same session, the Legislature saw fit to amend M.G.L. c. 41, § 101A, the statute that, until now, called for automatic dismissal of a Firefighter or Police Officer appointed after January 1, 1988 caught smoking tobacco. Now, an offender “shall be provided with an opportunity to enter a smoking cessation program.” And a second offense, “may be cause for dismissal.” In contrast, the current statute makes it clear that “no person so appointed shall continue in such office” if caught smoking.

While there are some Employers who have decided to give offenders a second chance, now every Employer will have to. The inconsistency is even more pronounced because the original anti-smoking statute was enacted decades ago in the context of legislation that provided a presumption to Police and Firefighters for purposes of retirement for certain conditions–like heart disease–that can be caused by smoking.