Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, November 23, 2009

Is Smoking A Disablity Under The ADA As Amended??

The Ohio Employer's Law Blog raises the question whether smoking is a disability under the ADA as amended and concludes that it very well might be. That has significant public policy implications because the ADA may prevent employers from having a smoke free workplace and some local laws that require smoke free work places may conflict with the ADA. The author of this posting states:

Critically, an employee is now protected under the “regarded as” prong regardless of whether or not the impairment limits or is perceived to limit a major life activity, and regardless of whether the employer believes the individual was substantially limited in any major life activity. The coverage of this protection is extremely broad. The only exception to the “regarded as” prong is when the impairment is transitory (lasting or expected to last for six months or less) and minor. Examples of such uncovered impairments include a sprained wrist, a broken limb that is expected to heal, the common cold, and the seasonal flu. Employers do not have to make reasonable accommodations for “regarded as” disabilities, but are still prohibited from taking adverse actions because of them.

At the ABA Labor & Employment Conference last week, I had the opportunity to ask Peggy Mastroianni, EEOC Associate Legal Counsel and author of the ADAAA’s proposed regulations, if the EEOC has a position on the coverage of smoking under the ADA. Her answer was that there is no formal EEOC position. The EEOC’s silence notwithstanding, the “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.

Frankly, I have not researched this issue and am not sure of the answer, but I would be surprised if smoking per se (as opposed to smoke related illnesses) are protected under the ADA. Law review commentary would be welcome with respect to this issue.

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2009/11/is-smoking-a-disablity-under-the-ada-as-amended.html

Employment Discrimination, Ethics, Law Review Ideas | Permalink

Comments

A logical extension to your posting is:
Can an employment agency refuse clients that smoke?

I know that I can refuse someone who is actively doing illegal drugs but the ADA seems very vague about *legal* drugs, addressing the right of a person who suffers from tobacco-related health issues to require a smoke-free workplace (depending on a case-by=case basis) and the exemption of providing a smoke-free workplace under the *undo hardship* clause for the employer.

If anyone can provide any case law or other substantive information concerning this I would appreciate an email to eedirector@artnickel.net. Thank you.

Posted by: Art Nickel | Apr 16, 2010 10:01:19 AM

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