ADA Amendments may Open the Door for Nicotine Addiction Claims
Today’s smokers [are] more addicted to nicotine according to a new study, which notes that 73% of those trying to quit are “highly dependent”. The Center for Disease Control and Prevention estimates that 20.2% of Americans are smokers. Pennsylvania has a slightly higher rate of smoking at 21.5 % with 51.9% attempting to quit. Many of these smokers are also employees.
Smokers are feeling the heat in the workplace through smoke-free workplace policies. Jon Hyman at the Ohio Employer’s Law Blog has a post asking Are there legal risks with smoking bans? He notes that pushing back on these employer initiatives are 29 states which have enacted laws protecting employees who smoke from discrimination.
Pennsylvania has no law protecting smokers from discrimination. To the contrary, Pennsylvania’s new Clean Indoor Air Act mandates smoke-free workplaces and precludes employees from smoking indoors. However, the law allows employers to prohibit smoking anywhere on company property; it does not prevent the continuation of outdoor smoking areas. Employers are left with the sometimes delicate task of crafting a policy concerning outdoor smoking and monitoring the break schedules of employees who wish to smoke. In addition, many wellness programs have targeted smoking with cessation programs coupled with both financial incentives and penalties.
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. In the only published case of which I am aware, the court in Brashear v. Simms set forth the following rationale in dismissing a smoker’s ADA claim:
…[E]ven assuming that the ADA fully applies in this case, common sense compels the conclusion that smoking, whether denominated as “nicotine addiction” or not, is not a “disability” within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of “disability,” which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke. In any event, both smoking and “nicotine addiction” are readily remediable, either by quitting smoking outright through an act of willpower (albeit easier for some than others), or by the use of such items as nicotine patches or nicotine chewing gum. If the smokers' nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.
Pennsylvania employers can and must adopt policies prohibiting smoking in the workplace. However, employers may well be required to reasonably accommodate nicotine-addicted employees much as they would need to do so with other addictions, like drugs and alcohol. The scope of such accommodations must be explored. Section G of the EEOC’s Guidance on Applying Performance Standards to Employees with Disabilities may prove helpful.
UPDATE: How will this new wrinkle weigh in the mix: Under Obama will smoking become "cool" again?
Michael, since dealing with alcohol and drug addiction is limited to "recovering" addicts, wouldn't smoking be handled the same way. Someone has to show that they have quit, or are trying to quit by being in a program?
Smoking tobacco is a behavior, not a disability. Smoking tobacco causes harm to others who suffer from a "breathing disability." The ADA protects people with breathing disabilites, i.e., asthma, emphysema, COPD, cystic fibrosis, lung cancer, etc. So the needs of the people who need to breathe clean air trumps the behavior of smoking.
2nd hand smoke is a crock. It has never been proven and all those anti smokers don't just want us smokers out in the cold, they want us to totally quit with no sensitivity to our needs. I have smoked for 36 years and until you smoke that long, you have no idea what its like to try to smoke. Here is what a Federal Judge said about 2nd hand smoke, Federal Judge William O'Steen threw out the EPA's classification of tobacco smoke and criticized the agency for falsifying data and lying to the public. Here is what the studies really say:
"In general, there was no elevated lung cancer risk associated with passive smoke exposure in the workplace. ..."Brownson et. al., 1992
I have no problem respecting the rights of non smokers, but I would like the same respect from them. Let me continue to smoke outside or in the privacy of my own house.