Thursday, October 30, 2008

More on smoking as a disability

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.

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