Posted on 01/27/2005 12:32:27 PM PST by 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.
I meant if for all those who depend on the nanny state to take care of them.
As I read Vicomte's post, it had nothing to do with state law. It had to do with activist judges creating new causes of action against employers out of thin air, regardless of whether or not there is a law on the books.
I'm scratching my head to figure out why some apparently consider that a conservative position....
They also may be able to get better rates if employees were prohibited from drinking, riding motorcycles, skydiving, shoveling snow, allowing their cholesterol to get too high, getting pregnant, .... (add your own activity that may raise medical insurance costs)
The biggest work related medical cost in the U.S. is work-related stress.
Very logical, elegant argument! As others have said: The law of unintended consequences.
Read this several times because it is good, tested advice. Smoking is now classified as a disease. Forced withdrawl from cigarettes (which the Government admits is a "nicotine delivery system) could lead to clinically significant depression and, eventually, to suicidal ideation. Forced reduction in body weight through radical changes in eating habits could also result in similar symptoms. Weyco employees, first, last and always, should not resign. Do not be trapped into insubordination while you plot to assasinate this jerk. Employees should lay a goundwork by attempting to comply with company policy and then seek professional medical and psychological assistance as their attempts at behavior modification fail. Never resign and keep a diary. Keep careful records of all communications from all agencies. When employees are pink slipped, they should immediately claim disability based on serious depression deliberately brought about through the actions of their employer. It is very important to list the onset of your disability while you were on your employer's payroll. Their states of depression may well last forever and prevent them from seeking further employment. Their disabilities will not be partial but will be 100% total. Go to the library and check out the DSM4; your symptoms, signs and phobias will be there in neat lists. Collect unemployment while your disability claim is processed although you will be unable to function at your new jobs. Expect your first disability claim to be denied (they all are). Keep appealing. Document, document, document. You will win eventually. Your employer will have to pay your unemployment and part of your permanent, lifetime disability benefits. (If he has any brains he'll realize that it's cheaper to accomodate your smoking habit and eating preferences.) In addition, you'll have bulletproof tenure forever once he's forced to take you back or shoulder your expenses for life. You must have confidence that you have this guy by the cojones. His heart and mind will follow.
We fight with the weapons we have. Sometimes ones which we pick up on the battlefield.
We fight with the weapons we find lying around the battlefield. If you threaten me with your rapier, I'm just as likely to bite off a piece of your ear. (For you, I change my tagline. Maybe you'll recognize it . . . or you can look it up.)
Smoking isn't a disability, it's a choice until you get your cancer or something.
I think where this is going is that the private company will give a sum (maybe $250) a month for you policy and that is it.
If you get a $70 policy, you pocket $180. If your smoking or prior condition costs you $500 a month, you have to kick in another $250 of your own and that is it.
The only issue I read there is the employer is in a current pool of insurance and the smokers are raising the hell out of the premiums. So instead of firing them, limit the financial contribution to the insurance and be done with it.
Yep, give them an amount and if it costs more, they can look elsewhere for their own insurance or can pay more for it.
A very good, common sense approach. Which, of course, is why it will never fly...LOL!
Great post.
I'm not defending this. I'm, just pointing out that, as it is, this is legal.
With the way smokers are demonized at this point in time, I don't see the government stepping in to do anything about this.
If the government is willing to let business owners close their doors due to smoking bans, what makes you think government will take any different stand on this? Just because it's an employee that's taking the hit instead of the business owner?
Employment-at-will is a right.
???????? I'm not sure I understand what you mean.
Employment, of any kind, is not a right. No one HAS to hire you for ANY type of job.
I agree completely that it would be better for the owner to back down and allow employees that were currently working to be grandfathered and only new hires have to adhere to the new policy. But, that's the decision of the business owner at this point.
If he wants to take it to court there's not a whole lot anyone can do at this point.
I just don't think the ADA is an option for this type of action.
Of course you have my permission.
I believe in what I wrote.
I was irritated that the response of some folks was "The government has no right to regulate or pass any laws here."
BWAHAHAHAHAHAA...
Guys, sorry, smoking is not a protected class and never has been.... nice reaching for straws though.
Many people defend property rights when it suits their needs but turn around and argue against property rights when it suits their needs. The government has no business regulating smoking in a business.
No person is forced to be a customer or employee and each is free to say no and leave or not enter. The business has the same right. It can open the door to a person or tell a customer or employee to leave. A customer, employee and business can refuse the other for any reason or no reason.
A customer doesn't have to give a reason why it chooses not to patronize a particular business. An employee doesn't have to give a reason why they chose to leave a particular business. A business doesn't have to give a reason why they chose to tell a customer or employee to leave.
Apparently an irrational thought process causes some people to think that businesses don't have the right to tell a person to leave the business.
Some people seek the strong arm of government and legal actions to violate property rights and free association.
Unfortunately, most people don't understand that the issue is property rights and free association so they argue almost everything but The Point.
The Point: protect and defend property rights and free association.
"As I read Vicomte's post, it had nothing to do with state law. It had to do with activist judges creating new causes of action against employers out of thin air, regardless of whether or not there is a law on the books."
What I said does have to do with state law.
29 states have passed laws that specifically prohibit employers from doing this sort of thing.
Michigan is not among them, but there may be existing precepts of Michigan law, existing court cases and interpretations of employment contracts up there that make what the employer has done here suspect.
Remember, the Common Law, which we so often praise, has never been primarily made by legislatures but by judges applying general principles of law to a specific case. The whole law of contracts started out as judge-made law. It still hasn't been codified in many respects.
I am not looking to create new causes of action out of thin air. What I am doing is trying to figure out a reasonable conservative response to something outrageous that an employer has done that has Michigan all abuzz, and has now hit the national airwaves as well.
Among those 21 states that don't have specific laws protecting private life from employer intrusion, there probably will be some that pass such laws based on this particular incident, if it continues to get press coverage and other employers follow suit.
I don't think that states deciding democratically to pass laws or not is a conservative or liberal issue - the content of the law determines that. Whether it's the state that passes the law, or the feds is, I think, a federalist/conservative issue. And I would expect conservatives and federalists to think that this ought to be left to the states to decide, and not think it outrageous that 29 states have decided that this sort of employer over-reach is for the birds.
Perhaps the best solution would be for the people of Michigan to get agitated enough about this to pass a law shielding private life from employer retaliation before any sort of legal action against the employer gets underway. In this way the legislature can make the law and not leave it up to the courts.
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