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.
There are a lot of smart people here--any thoughts, Freepers?
That was the first impression Icame to. I think it could. Now aint that a b---h.
"Now aint that a b---h."
LOL, talk about the law of unintended consequences!
I always appreciate both your well considered thoughts.
Do you think the ADA could help these smokers who will get fired for smoking? I've written up a rough legal memo arguing that it does and I'd love your input.
I also appreciate your thoughts. :)
If you think it's worthwhile, would you please ping your list? I kind of thought, "just damn!" when the idea first came into my head today. :)
Is there some legal ping list around here?
Yes, a few thoughts.
First, those fired need to get lawyers and sue in MICHIGAN. Not in Federal court, but in a Michigan court, before an elected judge, with a Lansing, Michigan unionized auto-worker jury.
We are all for federalism and states' rights, and this is states' rights in action. Does a cause of action exist under MICHIGAN law that would impose liability on this employer? That would be for an elected Michigan judge to decide, not for a federal appointee. Everyone involved here is a Michigan citizen. This is a Michigan company who hires in Michigan. Michigan law applies, and the trial should be in a Michigan court. And whether the employer was liable or not should be for Michigan people, in a jury of the employer's and employees' peers, should decide.
I have no real doubt that an elected judge and a Michigan jury would impose liability on this employer, and that would be the end of that. No other employer in his right mind in Michigan anyway, and probably anywhere else, would get it into his head that he has the right to extend his authority into the unpaid time of employee's private lives.
If an employer wants 24 hours of control, he has to pay for 24 hours of time. If he pays for 8 hours of an employee's time, he has no right to expect authority to control the other 16 hours of the employee's work.
The ADA claim is probably good from a legal perspective, but rather than try to make a protected class out of smokers, I would prefer a more frontal assault here. There are labor laws, and reasonable limits on what employers may do. For example, employers cannot legally make people work 100 weeks but only pay for 40 hours. They have to pay time and a half. We have not had absolutely an unregulated employment market in the United States since Lochner was overturned. There are a few principles which could apply here, but the most straightforward is the "unpaid work" idea. The employer is asserting control over an employee during his off time, in his own house, doing nothing illegal. That means that the employee is not really off the clock: the employer continues to assert supervisory authority over him. But the employer is not paying for the privilege of doing that.
Damages should be that the employer is obligated to pay the hourly salary rate to each employee for 24 hours a day, 365 days a year, from the time that the unpaid work policy was implemented.
It is really rather important that folks who believe in the free market step up to the plate here and smack down this employer. Because as with any other right, there have to be limits or that right will be abused. This is a clear a case as can be imagined of an abuse of the employment-at-will doctrine. Simply allowing the market to correct this will not work. First, it might not. Second, it is a poster case for anyone who wants to say that the unregulated labor market does not work. MOST PEOPLE find what this employer is doing outrageous, and they are right. It is. If we want to protect employment at will and NOT have a whole new raft of regulations, appellate boards, and union intrusion arising from this case - and believe me this employer will be copied by others if he gets away with it - this employer needs to be slapped down very firmly now. The free labor market and employment at will doctrine simply will not politically survive this sort of abuse by employer power. The people won't stand for it, and it won't be the free market that corrects it but government regulation: people are just not going to tolerate this sort of abuse long enough for the free market to finally come to bear.
The ADA claim is a good pretext to get the case into a Federal court, but the precedent that smoking is a disability has some ugly knock ons. I don't think we want to go there.
The simpler course is the true one: this employer wants 24 hours of work from his employees for 8 hours pay. That's illegal. Get a Michigan judge to allow the case on that theory, and a Michigan jury will do the rest. Try to defend the idiot employer here, and you're going to have laws and regulations that limit ALL employers because this idiot employer peed in the pool.
Yes, a few thoughts.
First, those fired need to get lawyers and sue in MICHIGAN. Not in Federal court, but in a Michigan court, before an elected judge, with a Lansing, Michigan unionized auto-worker jury.
We are all for federalism and states' rights, and this is states' rights in action. Does a cause of action exist under MICHIGAN law that would impose liability on this employer? That would be for an elected Michigan judge to decide, not for a federal appointee. Everyone involved here is a Michigan citizen. This is a Michigan company who hires in Michigan. Michigan law applies, and the trial should be in a Michigan court. And whether the employer was liable or not should be for Michigan people, in a jury of the employer's and employees' peers, should decide.
I have no real doubt that an elected judge and a Michigan jury would impose liability on this employer, and that would be the end of that. No other employer in his right mind in Michigan anyway, and probably anywhere else, would get it into his head that he has the right to extend his authority into the unpaid time of employee's private lives.
If an employer wants 24 hours of control, he has to pay for 24 hours of time. If he pays for 8 hours of an employee's time, he has no right to expect authority to control the other 16 hours of the employee's work.
The ADA claim is probably good from a legal perspective, but rather than try to make a protected class out of smokers, I would prefer a more frontal assault here. There are labor laws, and reasonable limits on what employers may do. For example, employers cannot legally make people work 100 weeks but only pay for 40 hours. They have to pay time and a half. We have not had absolutely an unregulated employment market in the United States since Lochner was overturned. There are a few principles which could apply here, but the most straightforward is the "unpaid work" idea. The employer is asserting control over an employee during his off time, in his own house, doing nothing illegal. That means that the employee is not really off the clock: the employer continues to assert supervisory authority over him. But the employer is not paying for the privilege of doing that.
Damages should be that the employer is obligated to pay the hourly salary rate to each employee for 24 hours a day, 365 days a year, from the time that the unpaid work policy was implemented.
It is really rather important that folks who believe in the free market step up to the plate here and smack down this employer. Because as with any other right, there have to be limits or that right will be abused. This is a clear a case as can be imagined of an abuse of the employment-at-will doctrine. Simply allowing the market to correct this will not work. First, it might not. Second, it is a poster case for anyone who wants to say that the unregulated labor market does not work. MOST PEOPLE find what this employer is doing outrageous, and they are right. It is. If we want to protect employment at will and NOT have a whole new raft of regulations, appellate boards, and union intrusion arising from this case - and believe me this employer will be copied by others if he gets away with it - this employer needs to be slapped down very firmly now. The free labor market and employment at will doctrine simply will not politically survive this sort of abuse by employer power. The people won't stand for it, and it won't be the free market that corrects it but government regulation: people are just not going to tolerate this sort of abuse long enough for the free market to finally come to bear.
The ADA claim is a good pretext to get the case into a Federal court, but the precedent that smoking is a disability has some ugly knock ons. I don't think we want to go there.
The simpler course is the true one: this employer wants 24 hours of work from his employees for 8 hours pay. That's illegal. Get a Michigan judge to allow the case on that theory, and a Michigan jury will do the rest. Try to defend the idiot employer here, and you're going to have laws and regulations that limit ALL employers because this idiot employer peed in the pool.
Sorry for the duplicate post. Can someone remove it, please?
pinging people who were interested in the Weyco story.
What do you think of my argument that the ADA protects the smokers from being fired?
The answer is "No."
thank you for your excellent post. And that is a great argument--he's extending 24-hour control but only paying for 8 hours.
And as for this: "It is really rather important that folks who believe in the free market step up to the plate here and smack down this employer. Because as with any other right, there have to be limits or that right will be abused. This is a clear a case as can be imagined of an abuse of the employment-at-will doctrine."
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.
Clearly you think I haven't made the case. Why not? :) Could you explain why you think it's weak?
I would have to agree with Vicomte13 just out of simplicity. Unless specified under contract the argument he raises is sound IMO.
"I would have to agree with Vicomte13 just out of simplicity"
It is a great, simple argument.
The employer's overreaching is not likely to go over well with a juror with smokers on it. :)
I've been look for the 29 states that have what's called "Lifestyle Rights Laws" which protect against discriminating against smokers.
Hi, SheLion...
I believe you have a smoking ping list? If you do, would you please ping the list?
I'm trying to get a discussion going about legal ways to help the Weyco smokers. :)
You made an excellent post!
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.
You alluded to the weak point and that is that those who gain coverage for drug and alcohol addiction cannot continue the behavior once admitted. They must kick the habits. As you noted also that is equivalent to accomplishing what the owner wants.
"I've been look for the 29 states that have what's called "Lifestyle Rights Laws" which protect against discriminating against smokers"
Thanks! You can always count on Freepers.
If we get lots of good ideas going, maybe we can forward the thread to one of the employees. Perhaps some attorney would take on their case pro bono?
From what I heard, they already have attorneys.
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