Mon. Sep 25th, 2023

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Q: I’ve been smoking since I was in high school, a pack-a-day habit for morethan 20 years. I’ve tried to quit multiple times over the years, but I felt so anxious andedgy and angry that I couldn’t concentrate, and definitely couldn’t work. I always thoughtthat if I could get some time off from work, and be given a bit of leeway when I returned,that I could finally quit for good. I didn’t think anything like that would be possible untilrecently. A co-worker who is a recovering alcoholic is allowed to leave work early twicea week to attend AA meetings. I asked my boss if I could do something similar, but hesaid I’m welcome to use my PTO time to kick the habit, but that’s it. He said smokingisn’t a disability. This doesn’t seem right. I’m just as addicted as my co-worker, whyshould she get an accommodation, but I don’t?
A: While the relative addictive properties of alcohol and nicotine can bedebated, what isn’t debatable is that nicotine addiction is not viewed as a “disability”under Michigan or federal law, while alcohol addiction is.
The Americans with Disabilities Act (ADA) recognizes alcohol addiction as a disability ifit “substantially limits one or more major life activities.” As described in an Ohio case,alcoholism can affect “several domains of … life, including family problems, relationshipproblems, physical/health problems and emotional problems.” Under the law, peopleliving with a disability, including alcohol addiction, are entitled to a “reasonableaccommodation” that will allow them to perform the essential elements of their jobs. Theprotections for those suffering from alcohol addiction, however, are limited pretty muchto the help your co-worker received: Getting time off to attend rehabilitation or supportservices. Employers do not have to “accommodate” people with alcohol addiction bylowering the standards expected of workers.
The ADA also allows protection to those addicted to the illegal use of drugs, but theprotections are similar to the limited accommodations allowed for people addicted toalcohol. Nicotine addiction is not specifically mentioned in the ADA; nor does it appearin Michigan’s disabilities law, the Persons with Disabilities Civil Rights Act.That there is any protection at all for people addicted to drugs is, according to somesources, due to efforts by the tobacco lobby, which viewed the ADA a potential “legalrecourse against employers who refuse to hire smokers.” An earlier version of the ADAspecifically excluded people with “psychoactive substance use disorders” (which includeaddiction to nicotine); the laws as passed excluded “psychoactive use disordersresulting from current use of illegal drugs.” Since cigarettes are not an illegal drug,nicotine addiction was not specifically excluded from the law. But, smokers could arguably be protected from discrimination in hiring and firing under the ADA if they areperceived as disabled – that due to their addiction they are less productive and morecostly to employ, even if smoking is not itself a disability.
Case law on the subject, however, has come down solidly in favor of finding thatsmoking cigarettes is not a disability. Although nicotine addiction might affect the “abilityto choose not to smoke” and limit the body’s “ability to be without discomfort when notsmoking,” one court said, it doesn’t substantially limit life’s major activities – caring foroneself, “performing tasks, walking, seeing, hearing, speaking, breathing, learning, orworking.” In a recent case in the Eastern District of Michigan, the court noted that theonly limitation the plaintiff’s smoking habit created was “the inconvenience of findingtime to smoke a cigarette.” As another court noted in 2001, treating smoking as adisability would “render somewhere between 25% and 30% of the American publicdisabled under federal law because they smoke.” While the share of American adultswho smoke declined to 12.5% by 2020, that is still some 30.8 million people.
While your desire to quit smoking is laudable, your employer is not required underpresent law to give you paid time off (or, arguably, any time off) to make the attempt.However, with the average price of a pack of cigarettes in Michigan hovering around$8, your pack-a-day habit is costing you about $3,000 per year. You could likelycover the cost of taking time off without pay in less than a year, a proposal youremployer might agree with (with a doctor’s note, it might even qualify as sick time).Good luck!
Troy Attorney Daniel A. Gwinn has a practice focused on employment law, civil rightslitigation, probate, and trusts and estates. Contact him with your legal questions or visit the website at “Ask the Lawyer” isinformational only and should not be considered legal advice.
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