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 could not agree more. What he's doing is totally outrageous and there has got to be a legal way to stop it cold.
I agree. As with achohol, if an employee drinks on his off hours, it is a legal substance. There is nothing the employer can do about it. As long as the employee doesn't drink during work hours.
I have known cases where the employee did drink during work hours, then claimed they only took cough medicine. There was nothing the employer could do, unless he had an eye witness. No testing for achohol is legal either. SHould be no different for any other legal substance.
This insurance costs is something I don't get. Each employee costs the same, there is no requirement by insurance to disclose smoking or drinking or anything else.
Life insurance does, but not health. Co-pays also are the same.
As a lifelong Camel smoker I would appreciate it if you would put me on your smoker ping list!
SheLion:
Could you add me to your ping list?
You DON"T want it classified as a disability or regulated under ADA!! That's opening the door to having it declared an illegal substance, or further regulation by the FDA.
No thanks!
I would much prefer judges, juries and government NOT get involved in this.
I fought this battle in Delaware more than 10 years ago when the first smoking ban surfaced. there was a one sentence line in the legislation that would have prohibitted hiring or firing employees based upon smoking status. That line was struck from the bill, it was the only way we were ging to be able to keep other language in it we wanted.
2 years later legislation was introduced to bar employers from hiring/firing employees because of legal activities they engaged in while on personal, not company time. No where did it mention the word smoking, however, the anti-smoker brigades came out of the woodwork in opposition claiming it was a 'smokers' rights' bill. It never got anywhere because of the political clout and mega bucks of the so-called non-profit "health" charities.
The interesting thing about that battle is the anti-smoker brigade used the arguement that it was too much government intrusion into private business decisions. Of course the same brigade had an entirely different position on government intrusion a decade later when they were able to dictate to private companies they could no longer permit anyone, employee or customer, to smoke inside their private businesses.
I don't like this guy's policy, but because of my personal position regarding excessive government intrusion, I can do nothing but wish him lots of luck. (preferably bad)
While this company owner has every right to fire employees under the “At Will” employment clauses, where he screwed up was firing these individuals for not taking a “tobacco” drug test.
In another thread on this topic I posted a decision handed down by the Fla State Supreme Court which overturned a ruling which allowed a company to fire an employee for refusing a drug test. The ruling stated that the company had no right to force said employee to take the test since his job classification was not considered “dangerous” and was thus a violation of his civil rights.
Such drug testing is only allowed by employers employing individuals engaged in jobs which are classified “dangerous” or where employees job performances are under scrutiny due to prior drug related instances.
Since the job classifications of these fired employees are not considered “dangerous” to warrant random drug testing, and their job performances were not at question, the ultimate firing of these individuals for refusing the test will be considered a blatant violation of their civil rights.
Their personal attorneys and the ACLU are going to have a field day.
You're correct....but it happened in Canada.
No. The two are completely unrelated. Whether or not addiction to a substance is considered a disability has nothing to do it being an illegal substance or regulation by the FDA. The most obvious example is alcohol. Alcohol addiction can be considered a disability, but its neither an illegal substance nor regulated by the FDA.
I'm an employment lawyer with lots of ADA experience, in case you're wondering how I know this stuff.
The ruling stated that the company had no right to force said employee to take the test since his job classification was not considered “dangerous” and was thus a violation of his civil rights.
This is my point. Drug test........NOT tobacco test. Tabacco is not an illegal substance. There is no right by an employer to subject employees to tobacco testing. I repest LEGAL substance.
You are correct. The cost of ins. coverage to any employer is not predicated on the number of individuals who are deemed to be partaking in "risky" lifestyles! Period!
Employers who cover employees with health care pay group rates negotiated by the company and their chosen insurer. So for this jackass to make the claim that he is attempting to cut his insurance costs is a BLATANT OUT AND OUT LIE!
Hey, I agree with you.
I really do.
The LAST thing I want, truly, is for there to be court decisions, laws and government regulations that step in to start regulating "at will" employment.
Same with speech. The LAST thing I want is for the government to be starting to draw lines at speech and the free press.
But consider speech. What about slander? What about speech that includes selling secrets to the Russians? What about publishing trade secrets or patent studies? What about child pornography and the free press?
What about shouting "Fire!" in a crowded theater, for that matter?
Now, if folks had not abused free speech and done each of those things, if they had used common sense and known that free speech is not absolute, no right CAN be absolute without it being a lever to tear society to pieces. (The right to life, for example. I am not talking about abortion. Just the right to not be killed by state action. This would allow anybody to opt out of combat service by simply saying "I do not want to get killed, so you have no right to send me". And presto: wir alles sprechen Deutsch". Not even the right to live can be absolute.)
But they didn't.
People didn't use common sense. They sold secrets to the enemy. They falsely advertised. They slandered. They sexually harassed. They published child pornography. And that forced us into a place we would prefer not to be: either passing or opining a law that limits free speech and the press to some extent, or standing by our assertion that speech and the press are absolutely free and unlimited in every case.
So we passed laws or handed down judicial opinions enforcing damages in every one of those cases.
Now consider "employment-at-will". What do we mean by that? Presumably, we mean that employers can hire or fire for any reason, or no reason, and employees can take jobs or leave for any reason, or no reason.
It starts in a position of absolute purity.
But then employers, who have the greater economic power, start to abuse the right. Indentured servitude. Company stores. Refusal to pay on the grounds that work was "not done right", with the employer the sole judge of that standard. Racial discrimination in hiring, then firing. Making voting for a certain candidate or party a requirement of employment. Cartel practices that prevented the re-employment of a discharged employee from finding jobs in any other firm in the same sector or area. Henry Ford sent his private police into his employees private homes to search for alcohol, and fired them if any was found. "Employment-at-will", like "free speech", is subject to terrible abuse, and it will be abused too, in endless ways, and it has been.
And so, just like speech, we started to enact laws and regulations, and hand down court opinions, to halt certain abuses. Now we have "employment-at-will", allowing the employer to fire or refuse to hire for any or no reason, but not a BAD, ILLEGAL reason, such as race, ethnicity, religion, etc.
Firing smokers has been a bad enough abuse that 29 states have enacted laws adding the use of legal products in private homes off duty as a protected class that employers may not fire on that basis. That's federalism and states' rights at work. Remember, we aren't talking federal law here, but the states exercising their sovereignty, democratically, to enact laws that stop a practice its people find abusive.
How could any federalist oppose this exercise of state's rights? Federalist conservative state's rights folks are not anarchists. They don't want the FEDERAL government to enact laws outside of a limited sphere, but presumably they agree that that which the FEDERAL government cannot do, the STATE governments surely can. I have never heard federalist, state's rights conservatism to mean that neither the Federal NOR THE STATE governments can pass laws. That's anarchism, not federalism.
Anyway, 29 states have passed laws. Michigan's not one of them, so this employer fires smokers and fat people. Well, maybe he can get away with it. But more likely, he has just given the Michiganders something that will anger most of them enough to raise the number of states that pass laws to knock off this nonsense to 30. And maybe the publicity this story has garnered will raise that number of states with their own laws and regulations - all perfectly kosher under a conservative federalist "Leave-it-to-the-several-States" point of view - to more than 30. Maybe 40. Maybe 50.
Employment-at-will is a good doctrine and an important right. But like any right, it has to be limited, or it will be abused. The guy in Michigan abused it. Laws will follow. That's how it always works.
Now, because I am a conservative federalist, I think those laws should be STATE laws, and not some extension of the Federal ADA. I will leave it to the more liberal commentators to develop the federal solution. Leaving this case to an elected Michigan judge and selected Michigan juror is the most conservative, traditional, federalist, states'-rights solution I can imagine.
Indeed, I cannot see why any conservative federalist would object.
Certainly I never understood conservatism to mean that all rights are limited by the duty to act responsibly and reasonably EXCEPT employers, who may do whatever the hell they please. That doesn't strike me as very conservative at all. Really, it seems quite corporatist.
I doubt it. The ADA doesn't even protect the disabled from being starved to death.
If you're a "proud American in Canada" then have a little pride in being an adult responsible for your own actions.
I'm a recovering alcoholic as well as a life long smoker.
I don't expect, don't want, and would never accede to having a governmental mandate which gave me privileges regarding my habits.
I take care of myself AND my habits. I have never even thought about receiving help from the ADA.
In a lot of cases, that's another liberal cop-out.
Save the ADA for people who really need it.
Tell a boss who wants to relegate your life to one of slavery to take his job and shove it.
Quit looking to the nanny state to provide for you with governmental regulations.
"You made an excellent post!"
*blushes* thanks! I've been thinking about it. I'm sorry I missed you before, I tried to answer everyone who posted, before I logged off.
As for this:
"The thing that I seem to be missing is that the "firing" excuse had to do with insurance costs. If the smoker pays their own private policy that is independent of the group plan then it would seem that the employers' reason is SOL."
And that is a great question. Like someone earlier said, they must have lawyers working on the case and yeah, if the smoker is paying the policy, or perhaps paying for extra benefits on a group policy, that really cuts into the employer's case.
Let me just interject some personal experience here. When I lived in the country of my birth, the U.S.A. (Thank GOD!), I never had trouble getting an appointment to see a doctor when I was sick. You get sick, you call up, you're seen that day or the next. No lengthy waiting for CAT scans or MRIs.
Well, I have had five years, almost, to experience state-run health care. Problems? Let me count the ways:
1. There are no new family doctors to be found, so people cant' make an appointment, they have to go to walk-in clinics where they wait for hours.
Where have the doctors gone? They have either retired... which will happen en masse very soon, or, the younger ones have gone to the United States, where they can make a living wage.
And this is especially true where I live, in the province of Quebec.
Just a couple of weeks ago, two experienced, capable nurses in Montreal were fired from their jobs at an English-speaking hospital. These women spoke French just fine, and by all accounts they were great nurses. Sadly, they failed A GRAMMAR QUESTION in their French test.
Anyone who is English-speaking by birth and tries to learn a romance language (French, Italian, Spanish), knows how hard the grammar is.
But because they made an incorrect "accord" between the verb and the noun, they were fired or laid off, if memory serves. I'll have to get a source.
To make a long story short... Canada is headed for disaster in terms of its health care system.
Now, I think everyone can agree that we don't want people, like the guy in Colorado who shot a nail in his head, to have a $100K bill for surgery. I guess this man didn't have insurance (either that or his insurance didn't cover for accidents happening during periods of extreme absentmindness or drunkeness..;)...)
So, these costs have to be paid. But it is not fair to intrude on people's personal lives like that.
2. I mentioned an example before about an employee making a destructive website. Now I think I've made a solid distinction.
Smoking is a personal behavior, not *intended* to hurt the company. Whereas if someone makes a website harmful to the company, well, there is intent.
Personal behavior, as long as it is not "intended* to harm the company, should be protected.
3. Long waiting lists.
I will post on this again tomorrow, but you know, last fall my family physician thought I might have sleep apnea. I kept waking up with my throat "closing." He wanted me to sleep a night in a clinic to have a test.
Guess how long that would take here? ONE YEAR.
I called Northwestern University in Chicago (where I grew up)--I could have had a test within a day or two.
There is a child in New Brunswick or one of the other Eastern Provinces of Canada who has already lost a kidney to cancer. This little boy is two and a half years old. How long until he gets an MRI? A year and a half, maybe two years.
I could go on... if anyone wants a source for these stories, which I heard on talk radio, I will find them.
This is because it's the government that distributes resources, not the market. There are gaps with the market, but experience has shown it is the best way to respond to people's needs.
Boy, have I gotten off topic, or what? !
I have to log off again b/c I have kids to get to bed. I was just so curious to see what, if anything, people said, that I came back here.
'night, all!
I welcome your input and hope to talk tomorrow.
Thank You!! You and I see that, I am surprised no one else does!
Okay, I feel so happy that people are contributing, even if they think my argument is total $hit. ;)
That's what I love about FR, things take on a life of their own. That's what I was hoping for--a full discussion of this issue.
This is an extremely important issue: on an individual level, some people will lose their jobs. Were I their lawyer I would resort to anything to protect them.
On the other hand, there is also a societal level. We must decide what costs and restrictions on liberty we are willing to accept.
I will answer everyone else who posted to me tomorrow. I appreciate it very much.
There personal attorneys maybe..........teh ACLU, no way.
The ACLU is of the same mindset of the anti-smokers, smokers have no rights. But I would put money on it if this company policy was the total opposite, they fired non-smokers and only hired smokers, the ACLU would be on them like white on rice.
Excellent defense of state laws over federal laws on such issues as this.
May I have your permission to pass it along to a few friends that are not FReepers, but are firm believers in State's rights?
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