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.
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? :)