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.
The arbitrator disagreed. He rejected the notion that disability should be determined by reference to whether the condition is temporary or permanent....
That is in direct opposition to very well-established Supreme Court precented here in the U.S. So even if a period of withdrawal rendered a person "disabled" for a short period, that's not enough.
As for the addicted person's ability to function, the arbitrator conceded that, compared to those suffering drug and alcohol addiction, addicted smokers were able to function reasonably well.
And that's pretty much the death-knell for that claim here in the U.S.
But the loophole is union involvement. While I don't think there's a decent federal argument, or argument under Michigan law, there could very well be an argument in the union context. An arbitrator appointed pursuant to a collectively bargained grievance process likely would have the right to determine whether a unilaterally imposed company rule regarding off work smoking was valid. And my guess is that it would fail under most CBA's. And its even less likely that an employer could convince an arbitrator that smoking outside the workplace would constitute "just cause" under a more general standard.
That sort of illustrates that the best way to address this issue is by employee pressure rather than involvement of the court system. The law of unintended consequences and all that.
Union pressure is fine.
However, remember that employees have the power to unionize because the law prohibits employers from preventing it. Before that law, the practice of employers was to fire all union organizers.
Was that abusive, firing someone for being involved in union organizing?
Seems to me that it make perfect sense. Talk about something that really affects business pretty profoundly! There's nothing like a union to gum up the works.
But that may be the answer in Michigan.
If employers won't be reasonable and not abuse their authority like this guy.
And if folks are so skittish about the law that neither legislation nor any sort of judicial settlement is acceptable,
then maybe what needs to happen is one of the big powerful local unions needs to intervene and offer to set up a chapter in this guy's company.
He can't stop that, or fire the organizers.
And then he'll have a whole lot more supervision of every single act he takes than any of the other proffered solutions.
Much better than having judges expand the common law to include their own personal sense of what the law should and should not be.
"The ADA's business necessity requirement will be easier to satisfy than its job-relatedness requirement. No doubt the employer would realize a significant cost savings on its insurance premiums if all its employees were non-smokers, and reduced insurance premiums is a business necessity of almost any employer. An employer who tests its employees to make sure that they are not smoking in order to protect its low insurance premiums will likely meet the business necessity test on the cost savings basis alone."
But isn't that why state judges are elected?
So that if they do that sort of thing, they can be removed by the people in the next election?
Also, how do you feel about jury nullification, where a fellow is guilty of a law, as written, but the jury considers the law unjust and simply won't convict?
First of all, let me just say, it may not be a good idea to add yet another disability that employers have to pay for in some way. As I mentioned earlier, I was just interested in exploring the ideas/possibility.
"And that's pretty much the death-knell for that claim here in the U.S."
Yes, a smoker's ability to function mentally and physically is a big hurdle.
I suppose I was thinking of it from an evidentiary perspective. It would be difficult to show that a particular individual suffered severe impairment, but perhaps a case can be made by looking at the aggregate, by showing that the population of smokers as a whole has a reduced ability to function (respiratory problems, etc.). It may or may not be a convincing case.
Also, did you see Wolfie's link in #110? That discusses U.S. law.
You have a lot of knowledge on this--are you a lawyer? :)
Oh, I missed that, LOL. :)
The cost savings idea is much like the fictional website that an employee created on their own time, from their own pc--something like WeycoSucks.com. That employee would be fired, certainly, because the company would lose good will and presumably revenue.
The only difference with the smoking is that an employee's smoking doesn't harm the company's reputation, though each situation makes a difference to the bottom line.
In any case, although these people will apparently be out of a job, perhaps Michigan will ultimately pass a law protecting employees' right to smoke.
"And for those who think that employers would treat employees fairly in the absence of laws need to study the history of unions in the U.S."
That is very true.
I can still remember reading--isn't it "The Jungle"?--by Upton Sinclair in high school.
Well, no. They're supposed to interpret the laws as written, not try to create new ones based on what they think the law should be. That's pure judicial activism.
So that if they do that sort of thing, they can be removed by the people in the next election?
Then why bother having a legislature at all? Why not just have judges fulfill both roles? Judges are generally not permitted to campaign on specific issues -- violates judicial canons. So when people elect a guy, they're not supposed to consider whether or not he thinks a law like that is a good idea, and a judge often isn't even permitted to comment on it. That's because its not a judge's job to decide what the law should be -- its his job to decide what it is.
Also, how do you feel about jury nullification, where a fellow is guilty of a law, as written, but the jury considers the law unjust and simply won't convict?
That's not nearly as dangerous because only judges set precedent. A jury verdict only has a legal effect on that particular case, whereas a legal decision issued by a court has some precedential/persuasive effect beyond that case.
You have a lot of knowledge on this--are you a lawyer? :)
Yup. I practice employment law, lecture on it, etc., and am very familiar with the ADA. The problem with the ADA, as with other employment laws, is that most people only think of the egregious cases where most of us can agree that something "wrong" happened. But there are tons of other cases where a broad reading of the statute can create horrible problems for employers who are acting reasonably. You have to consider the unintended conequences of such a law before advocating its expansion.
The ADA does contain some restrictions on the right of an employer to conduct medical examinations of its employees, regardless of whether or not the employee is disabled. So that already provides employees with some degree of protection.
Thank you.........
shortly after I posted to you last night (thursday) my phone lines went out and they have only recently been restored(friday), thus the major delay in my response to you.
Well I'm just such a lovable ole fuzz ball who could disagee with me? :^)
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