Could the Americans With Disabilities Act prevent Weyco from firing smokers? (vanity)

January 27, 2005 | self

[proud American in Canada]

I've been thinking quite a bit about the Weyco case and wondering if something can be done.

Clearly, as a private employer, the employer did nothing unconstitutional in precluding smokers from working for him. But is there some other recourse for the employees who face the loss of their jobs?

I think these people have a good argument that they are protected by the Americans With Disabilities Act, that the employer has discriminated against them on the basis of a disability, an addiction to cigarettes and/or nicotine.

Not only would I like to see these people not lose their jobs at the hands of a busybody control freak ;), I am worried that this case sets a horrible precedent if it is allowed to stand. What's next? Not allowing alcohol? Not allowing dangerous sports? Requiring DNA testing for genetic cancer risk?

So, here's a rough legal argument (I just wrote this up). I would love your input.

1. Is addiction to tobacco/nicotine a disability similar to the disability of an addiction to alcohol or the use of illegal drugs?

An addiction to alcohol and the use of illegal drugs are considered a disability under the ADA. Can smoking be likened to the use of such substances such that it could qualify as a disability under Section 104?

Alcoholism and the use of illegal drugs are considered a disability when the individual (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (2) is participating in a supervised rehabilitation program and is no longer engaging in such use.

The difficulty with this section is that it requires that the person must be abstaining from alcohol or drugs and to be enrolled in a treatment program. Such a requirement in the case of smoking would be the equivalent of this employer's current policy--that they must quit.

However, smoking can be distinguished from these two substances such that, if this section is used, it can be argued that it is not necessary that smokers quit.

Alcohol and drugs are mind-altering central nervous system depressants, the use of which impairs mental functioning. Nicotine is a stimulant and does not impair mental functioning; indeed, smokers claim it improves the clarity of their thinking.

Even if some illegal drugs are stimulants and might conceivably enhance cognitive functioning, these drugs are illegal. Tobacco and nicotine are legal substances.

2. If Section 104 cannot apply, is an addiction to smoking a disability on its own?

A disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."

So, given that smokers are in full possession of their mental capabilities, is an addiction to tobacco a physical or mental impairment that substantially limits one or more of the major life activities of a smoker?

I think a strong case can be made that it is both a mental and a physical impairment that does substantially limit major life activities.

As an addiction to tobacco exerts a powerful physical and psychological hold on smokers, despite overwhelming evidence of the immediate and cumulative adverse health effects of smoking (see, for example, from http://www.health.gov.sk.ca/rr_smoking_effects.html (an official Saskatchewan website).

Smoking is a physical impairment, both in the short term and in the long term.

Tobacco use results an immediate risk of a range of health problems, increased cough, phlegm, and wheezing, reduced lung function and a worsening of problems from asthma. As a result, their major life activities may be substantially limited. Their reduced respiratory capacity results in a lesser ability to participate in physical activities and sports. Furthermore, male smokers face a much greater risk of impotence than non-smoking males; certainly sexual activity is a "major life activity."

Furthermore, if people continue to smoke, it is well-documented that they face a higher risk of premature deaths due to cancers, cardiovascular disease, and respiratory illnesses. Though the following may sound flip, I don't mean it that way--but remaining alive is a "major life activity." However it is clearly documented that in general, smoking "substantially limits" a person's ability to live out a healthy life span.

Smoking is also a mental impairment that substantially limits a major life activity, as it substantially limits the ability to quit an addiction to tobacco.

Despite the overwhelming evidence of ill effects, many smokers cannot stop smoking even when they desperately wish to do so. Tobacco creates a physical and mental dependency that experts state are much stronger than is created by other drugs. Most former addicts say that it is much harder to give up nicotine than alcohol, cocaine and even heroin.

2. Did the employer discriminate?

(I think it is a covered employer--but even if it is not, I'm just putting this argument out there to debate its merits).

The general rule is that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."

"Discriminate" means "utilizing standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability."

The company instituted mandatory testing of employees that had the effect of discriminating them based on smoking, resulting in their ultimate discharge.

Discrimination is also effected by "denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability... and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual"

The company first barred smokers from being hired in 2003. Presumably he turned away "otherwise qualified individuals" merely because of their disability. Furthermore, the qualification standard of nonsmoking screened out smokers.

3. Reasonable accommodation

Finally, not making reasonable accommodations to an employee's disability is a form of discrimination unless the accommodation would impose an undue hardship on the operation of the business.

Here, the employer could accommodate the employee's disability by requiring a nicotine patch during the day, if the employee cannot go all 8 hours without smoking. Such an accommodation is reasonable. In fact, it is beneficial to the employee's health (far safer than cigarettes, which have lots of other cancer-causing substances in them) and might assist the employee's recovery. It is certainly not a hardship because the patch is unnoticed by others, does not interfere with the employee's functioning (and might enhance it), and the employee would be paying for it.

[Ace of Spades]

Vicomte-- A standing ovation for you. I don't think it could be said any better.

[dschoemaker]

I actually have done quite a bit of research on ADA with a previous employer. One of the interesting aspects of the ongoing litigation is that Smoking is not in and of itself a disability. It is an addiction. It does not directly create problems in the work environment, individuals can still perform the basic requirements of the job.

Other addictions such as drug and alcohol abuse create direct problems that can effect these basic abilities. Once you reach the stage of absenteeism, absent mindedness and other symptoms occur you would be covered by ADA. However, prior to that point you are theoretically not covered.

ADA only covers the disability itself not the underlying addiction.

[Vicomte13]

"I could not agree more. What he's doing is totally outrageous and there has got to be a legal way to stop it cold."

Because if it is not stopped legally, it will certainly be stopped politically, and that means more laws and more regulations on ALL employers, because this ONE had to assert the power to supervise his employees' legal off-duty activities.

It's not a question of whether or not he should be able to.
He is not going to be allowed to be able to.
The only question is: do we make that real obvious right now, with a quick legal strike that sets an example?
Or do we let the employer dig in, end up giving the unions a LEGITIMATE cause to agitate about, energize the regulators, and energize the political base of people who want to regulate employers.

Employment-at-will no more means that an employer can tell you that you can't smoke in private off duty in your own house on your own time than "free speech" means you can scream obscenities at your boss and not be fired. This is just common sense, folks. The employer has none. And he should be hung out to dry by everyone on the right. This is the kind of guy who sets back the conservative movement by being an unreasonable jackass.

[untrained skeptic]

Smoking is not a disability. People make a conscious choice to start smoking despite ample warning that it is addictive and harmful.

You don't have a hight to have someone else give you a job. Why shouldn't an employer have the right to dictate who they hire, especially when smokers drive up the costs of health care benefits.

I don't smoke. I don't particularly like being around people smoking. However, if you want to smoke and do it away from me I don't really care. At the same point I don't want to be effected by the health care bills your habit is likely to generate in the long run.

The Americans with Disabilities Act is a law that has already been horribly abused. Lets not continue to use it to push for special rights for some at the expense of the rights of others. That should only be done when there is good cause to do so. I don't think that one person's right to smoke outweighs the employer's right to determine who they want working for them, and their ability to deliver health care benefits to their employees for a reasonable amount.

[proud American in Canada]

Thank you for your thoughts.

"It does not directly create problems in the work environment, individuals can still perform the basic requirements of the job."

That is one of the greatest weaknesses of the argument. :)

[TASMANIANRED]

There is another issue here as well.

Stop smoking aids such as nicotine gum, spray or tablets will test positive as well.

[proud American in Canada]

"Why shouldn't an employer have the right to dictate who they hire, especially when smokers drive up the costs of health care benefits."

In theory I agree completely. It's just that I find it disturbing that an employer will regulate what a person does on his free time, especially when a lot of other activities could drive up health care costs.

And even people with underlying genetic conditions could be refused being hired by some companies, on the same theory.

A society is more productive when it has a healthy population, when people have their illnesses, whether it's the flu or breast cancer, taken care of in a timely manner.

Someone's got to pay for that. In the U.S., we've chosen private insurance paid for by the employer (and it's resulted in the best healthh care system in the world).

But what if, as science improves, employers start screening out for all kinds of potential illnesses, as Weyco did?

I suppose, left with an untenably shrinking workforce, businesses would have to relent, but still...

It's interesting to think about to say the least.

[proud American in Canada]

That's a good point.

Apparently people who eat poppy seed bagels fail drug tests. :)

[Vicomte13]

"Why shouldn't an employer have the right to dictate who they hire, especially when smokers drive up the costs of health care benefits."

In this particular case, the employees were already working there, then the employer changed the policy.

But the broader answer to your question is "democracy".

When I peruse the Bill of Rights, "employment-at-will" and "unregulated labor markets" do not appear there.

And they aren't going to appear there.

An employer does not have the right to intrude into people's legal activities in private, on their own property, during their off-duty hours, because he does not pay the employee for 24 hours of his time. The employer pays for 8 hours of time. And for that he gets 8 hours of control, not 24. Labor is a commodity. Another commodity is lumber. If I buy 8 tons of lumber for paper, I do not have the right to take 24 tons off the lumber truck and pay eight for it.

And with labor, it is particularly stupid to try, because workers are also voters. Nobody likes to have a boss, but we all serve someone. That's the way it is. Generally, employers are reasonable and fair. When they are not, and sometimes they are not...well, that's when new labor laws and regulations start cropping up.

Example: sexual harassment law. Now, time was when "employment at will" meant that if you wanted to work for my company, you had to put up with my crude sexual comments and innuendoes and come-ons all damned day. Because I had free speech, and you had no right to work for me. Therefore, I had the right to sexually harass you. That's unregulated free speech. And it didn't survive. Because when it comes right down to it, people will use their democratic power to limit free speech and nail sexually harassing employers to a cross. Democracy has more power than vague concepts like "it's my company, so I can do what I want". No, you can't. We can, in fact, regulate the hell out of you. We have. And we will again too, every time you go over the top and start pretending that you are a noble lord.

A noble lord had retainers whose lives he controlled.
But an employer has authority to the extent that he pays for it, for a specific purpose, and for a limited time.
Employers and folks with capital sometimes get it into their heads that their status OUGHT TO make them noble lords, able to demand whatever they want from their employees. And "employment-at-will" doctrine will protect them.

Except that it doesn't.
And it hasn't in America for a good 60 years now.
The old days where a private company was a private fief and the boss could say whatever he wanted and do whatever he wanted to his employees because it was his company are GONE.
And the REASON they're gone is because this right, employment at will, like any other right, carried with it the DUTY not to go too far.
Employers went too far.
And democracy supersedes employment at will doctrine.
There is not employer's authority amendment to the Constitution.
But there certainly will be laws and regulations imposed to stop employers from doing what this jerk in Michigan has done if all of that isn't headed off at the pass right now, quickly, and sanity restored.

Yes, smoking and overweight add some costs. But they just have to be borne. Employers are simply not going to get away with firing all smokers and heavy people. They can try, and do some of that now. And then the backlash will be the imposition of rules, regulations and laws that further limit employers so that they cannot do that.

It would be simpler, and better, if everyone toed up to the plate right now and said that the employer here has dreadfully abused the employment-at-will doctrine, and he be browbeaten into backing down. Because if he isn't, other employers will follow suit, and the democracy - even in a Republican country - will retaliate, and there will be a whole lot more laws and regulations on employers.

Standing up for this guy is self-defeating to the whole conservative cause. He is going to damage free enterprise here, not help it. Because democracy is going to bring the hammer down here if the business community doesn't self-police this sort of nonsense.

It's not a question of "if", but "when".
Employers do not have the right to fire people in regular clerical jobs for smoking off duty on their own time in their homes. They don't have the right to fire people for being a bit overweight. Right now, there is no LAW that tells them they can't, so apparently some fool in Michigan has decided he has that right.

And so that which SHOULD BE common sense and prudent self-regulation is going to end up as court orders and government imposed rules that make it clear that, no, employment-at-will does NOT go that far.

This is an unwinnable war.
And frankly, it should not be fought.
Employers do not have that degree of power over employees.
Most know that.
This guy was out the day they handed out common sense.
So now we're going to have it all spelled out in law because this fool peed in the pool.

[proud American in Canada]

There is one thing I thought of regarding the regulation of off-duty conduct.

What if an employee started a "WeycoCompanySucks.com" website, on their own time, from their own PC, resulting in loss of reputation and financial damages to the company? Certainly that employee would be fired.

The only difference I can think of is that with the website scenario, the company's good will and reputation is damaged. But both the website and the smoking result in a poorer bottom line for the company.

ANYWAY.... as you say, if it can't be stopped legally in this case, it has to be stopped politically. It's outrageous.

[proud American in Canada]

Okay, I have to log off to make dinner.

Thank you all for your considered input and hopefully we can pick this up tomorrow.

[MEGoody]

While I would not generally endorse using the Americans with Disabilities Act for a situation such as this, I do enjoy it when lefties get a good dose of their own medicine.

[SheLion]

I'm trying to get a discussion going about legal ways to help the Weyco smokers. :)

I have you added! Thanks so much!

[SheLion]

[Keith in Iowa]

Be careful what you ask for....getting a court to declare that cigarettes are a delivery device for an addictive substance would not be a good thing...

[Keith in Iowa]

>>>While I would not generally endorse using the Americans with Disabilities Act for a situation such as this, I do enjoy it when lefties get a good dose of their own medicine.

See #35 above....

[TOUGH STOUGH]

"The ADA claim is probably good from a legal perspective, but rather than try to make a protected class out of smokers, I would prefer a more frontal assault here. There are labor laws, and reasonable limits on what employers may do. For example, employers cannot legally make people work 100 weeks but only pay for 40 hours. They have to pay time and a half. We have not had absolutely an unregulated employment market in the United States since Lochner was overturned. There are a few principles which could apply here, but the most straightforward is the "unpaid work" idea. The employer is asserting control over an employee during his off time, in his own house, doing nothing illegal. That means that the employee is not really off the clock: the employer continues to assert supervisory authority over him. But the employer is not paying for the privilege of doing that. Damages should be that the employer is obligated to pay the hourly salary rate to each employee for 24 hours a day, 365 days a year, from the time that the unpaid work policy was implemented."

The above is the most befitting and appropriate strategy.

[XJarhead]

1. Is addiction to tobacco/nicotine a disability similar to the disability of an addiction to alcohol or the use of illegal drugs?

Nope. Being an addict may constitute a physical or mental "impairment", but that's not enough to be covered by the ADA. To get the protection of the ADA, an impairment must substantally limit a person in a major life activity. And I can't think of a decent argument for what "major life activity" is "substantially limited" by smoking. Alcoholism and drug abuse, on the other hand, often impair a person's cognitive abilities, and therefore do "substantially limit major life activities."

I could see an enterprising Plaintiff's lawyer making a "regarded as" claim, which is when a person isn't really disabled, but is "regarded as" disabled by the employer. But that's a crummy argument too. The employer's response would be "I don't regard him/her as disabled, I regard him her as a being a smoker."

The other way you could get in the ballpark but ultimately would fail is via the genetic route. Employers are not permitted to make employment decisions based on an individual's genetic info. But that doesn't apply here because its a behavior, not genetic info, to which an employer is reacting.

The bottom line is that while I think someone may try to make this argument one day, it ultimately will fail in the federal courts. Particularly since the Supreme Court has restricted coverage of the ADA almost every time it has been given the opportunity to do so.

[untrained skeptic]

If companies try and limit who can work for them for silly reasons they'll have trouble finding good employees. Other companies will hire good employees who have characteristics that the first company didn't like and do a better job.

I work at a company that refuses to hire smokers. Those who were hired before the policy went into effect are allowed to continue. I believe it's a total of one person now.

I don't believe we've ever fired someone for taking up smoking, or for smoking after they were told that it's against policy.

There was one person brought on as a temp with the understanding that they would have to quit smoking. They ended up quitting the job because they weren't able to quit smoking.

I don't know what would have happened if they pressed the issue, but they decided to voluntarily quit because they had agreed that it was a requirement.

[Just another Joe]

Sorry, proud, this cretin can certainly, legally, fire any employee for things done in their off time if it's against company policy.

Look at professional sports figures, military contractors, airline pilots.

While he should have grandfathered in employees already working there, it's not legally required.

For all you folks making the point about smokers being a net drain - bs.
It's well known that a study has been done that says smokers cost less to society, in the long run, than nonsmokers. So put that in your pipes and smoke it.

While I, personally, wouldn't work for this man unless he wants to pay me in the high 6 figures, whether I smoked or not, others may think differently.
The only way this man is going to be hurt by this is for the consumer to do it. Most companies aren't going to stop doing business with this man for this reason.

And yes, anyone wants to pay me $500,000 or more to quit smoking, I will.