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.
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!
"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."
Thank you for your informed posts.