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Smoking a Disability?

 
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Barbara K.



Quit Date:
December 23, 2004

Posts: 5977

PostPosted: April 22, 2009 1:04 AM    Post subject: Smoking a Disability? Reply with quote

Taken from this site:

http://www.palaborandemploymentblog.com/articles/employee-benefits/

Comments Trackbacks ADA Amendments may Open the Door for Nicotine Addiction Claims
Posted on October 29, 2008 by Michael Moore
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?

Tags: ADA, Clean Indoor Air Act, Discrimination & Harassment, Discrimination & Harassment, EEOC, Employee Benefits, Employer Liability, Termination, Workplace Trends, accommodation, cigarette, disability, policy, program, reasonable, smoker, smoking, wellness
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Obstacles don't have to stop you. If you run into a wall, don't turn arouind and give up. Figure out how to climb it, go through it, or work around it.

Blessings,
Barbara K.
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StuartH



Quit Date:
September 12, 2008

Posts: 105
Location: Cromer, Norfolk - UK

PostPosted: April 22, 2009 2:49 AM    Post subject: Reply with quote

I'm just repeateing part of that post, but....

If we assume that a disability is something that can't be "fixed" or will never heal - unlike and illness or an injury....

Then smoking can never be classed as a disability because it is curable... just choose not to do it!

Interesting read though.
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Barbara K.



Quit Date:
December 23, 2004

Posts: 5977

PostPosted: April 22, 2009 4:34 PM    Post subject: Reply with quote

Stuart,

Glad you enjoyed the read.
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Obstacles don't have to stop you. If you run into a wall, don't turn arouind and give up. Figure out how to climb it, go through it, or work around it.

Blessings,
Barbara K.
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Tammy



Quit Date:
February 16, 2004

Posts: 2565
Location: Florida

PostPosted: April 22, 2009 11:02 PM    Post subject: Reply with quote

My dr's office has recently made their entire property a smoke free zone.
More and more this is happening in SWFL Yippie! Very Happy
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Tammy
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Barbara K.



Quit Date:
December 23, 2004

Posts: 5977

PostPosted: April 22, 2009 11:21 PM    Post subject: Reply with quote

That is great Tammy.
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Obstacles don't have to stop you. If you run into a wall, don't turn arouind and give up. Figure out how to climb it, go through it, or work around it.

Blessings,
Barbara K.
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