In commenting on my post on workplace smoking bans from earlier this week, Michael Moore at the Pennsylvania Employment Law Blog suggests that that the recent ADA Amendment Act (ADAAA) could make nicotine addiction a protected disability.
The recent ADA amendments significantly change the statutory definition of “disability.” In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity must be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of “disability.” The ADAAA expressly reverses that ruling by requiring the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures. Thus, when the amendments go into effect on January 1, 2009, a diabetic will be “disabled” under the ADA whether or not insulin is used to control the diabetes.
Michael argues:
The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.
Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.
I recognize that the ADAAA is going to expand the protections of the ADA beyond the scope of where courts have taken it in recent years. I do not believe, however, as some have argued, that it has been taken so far to encompass things such as nicotine addiction. We will have to take a wait-and-see approach on the post-amendment scope of ADA until courts start weighing in on exactly how broad the definition of “disability” has become. I stand by my earlier prediction, though, that smoking is not a protected disability under the ADA, a classification that should not change after January 1.
4 comments:
Jon:
I can call you about a side bet on this one. Nicotine addiction will be treated like alcoholism which is clearly a disability under the ADA. Disability based on smoking will be how the laymen describes it, which will be quickly repackaged to nicotine addiction after the first visit to the Plaintiff's attorney. Either way, the ADAAA will make us re-think our approach to managing employment situations moving the emphasis from "Is the employee is disabled?" to "How must we accommodate?."
I'm happy to take a bet. I agree that alcoholism is a disability, but we don't have to let our employees drink at work. Drug addiction is also a disability, but there is nothing in the ADA that prohibits an employer from terminating based on a positive drug test.
If we don't have to allow addicts to use at work, what is the accommodation then? Smoking cessation programs? That's exactly what the anti-smoking policies are trying to accomplish. They seek to get employees to quit smoking by making medications, classes, and other programs available to employees. Taking your argument to its logical conclusion, if nicotine addiction is a disability that employers will have to accommodate, no smoking programs (or similar accommodations - a dispenser for nicotine patches in restrooms) will be, more or less, mandatory across the board.
Michael, I don't read the ADAAA that broadly, and we'll have to wait and see what courts do with it on this issue.
Catch-22. If you are wrong about someone meeting the definition of disability, then you miss the chance to engage in the interactive process and assess reasonable accommodations. Accommodating nicotine addition doesn't necessarily mean that you let someone smoke, just like accommodating alcoholism doesn't require that you let them drink. However, you might need to consider how any addiction impacts the performance of the essential functions of the job. Accommodations might include time off for treatment, modifications to a break schedule, reassignment, or the like. If you allow smoking breaks, you need to assess whether more frequent breaks is reasonable.
If you consider someone to be disabled and they are not, then you have created a "regarded as" claim. I think it is the devil you know rather than taking a hard line on whether they are disabled.
Did you know that there are over 4,000 chemicals in cigarette smoke? These include formaldehyde (used to preserve dead bodies), ammonia (used in strong cleaning liquids) and cadmium (a highly poisonous metal used in batteries).
And if that isn’t reason enough for you to quit smoking
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