The courts have been unwilling to treat dependence on smoking as a disability requiring reasonable accommodation under the Americans with Disability Act. Some are wondering whether that will change, however, with the new expansion of protected categories under the ADA Amendments Act. (Michael Moore, Pennsylvania Labor and Employment Blog, Oct. 29; Jon Hyman, Ohio Employment Law, Oct. 30).
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If this happens, I’m starting Overlawyered2.com!
This is a legitimate fear. One of the reasons courts gave for not treating smoking as a disability is that it is “correctable” — meaning you could choose to quit.
But the Supreme Court decisions recognizing a “correctable” defense have been overruled by the ADA Amendments Act.
(Smokers used disability claims to try to challenge smoking bans in prisons (which are, amazingly, covered by the ADA) and other places).
Now that many government rules have made ‘reasonable’ accommodation of smokers (smoking area, etc) virtually impossible, I guess this was next.
Which brings up an interesting thought. Inasmuch as smokers on juries in some areas have no reasonable way to catch their fix (others provide breaks to step outside), and that some people become truly ill tempered in that situation, is there a basis to think that might actually affect the outcome of a trial? That some jurors might be so desparate that they will quickly fold rather than extend discussion?