Q: I’ve been smoking since I was in high school, a pack-a-day habit for more
than 20 years. I’ve tried to quit multiple times over the years, but I felt so anxious and
edgy and angry that I couldn’t concentrate, and definitely couldn’t work. I always thought
that 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 until
recently. A co-worker who is a recovering alcoholic is allowed to leave work early twice
a week to attend AA meetings. I asked my boss if I could do something similar, but he
said I’m welcome to use my PTO time to kick the habit, but that’s it. He said smoking
isn’t a disability. This doesn’t seem right. I’m just as addicted as my co-worker, why
should she get an accommodation, but I don’t?
A: While the relative addictive properties of alcohol and nicotine can be
debated, 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 if
it “substantially limits one or more major life activities.” As described in an Ohio case,
alcoholism can affect “several domains of … life, including family problems, relationship
problems, physical/health problems and emotional problems.” Under the law, people
living with a disability, including alcohol addiction, are entitled to a “reasonable
accommodation” that will allow them to perform the essential elements of their jobs. The
protections for those suffering from alcohol addiction, however, are limited pretty much
to the help your co-worker received: Getting time off to attend rehabilitation or support
services. Employers do not have to “accommodate” people with alcohol addiction by
lowering the standards expected of workers.
The ADA also allows protection to those addicted to the illegal use of drugs, but the
protections are similar to the limited accommodations allowed for people addicted to
alcohol. Nicotine addiction is not specifically mentioned in the ADA; nor does it appear
in 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 some
sources, due to efforts by the tobacco lobby, which viewed the ADA a potential “legal
recourse against employers who refuse to hire smokers.” An earlier version of the ADA
specifically excluded people with “psychoactive substance use disorders” (which include
addiction to nicotine); the laws as passed excluded “psychoactive use disorders
resulting 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 are
perceived as disabled – that due to their addiction they are less productive and more
costly to employ, even if smoking is not itself a disability.
Case law on the subject, however, has come down solidly in favor of finding that
smoking cigarettes is not a disability. Although nicotine addiction might affect the “ability
to choose not to smoke” and limit the body’s “ability to be without discomfort when not
smoking,” one court said, it doesn’t substantially limit life’s major activities – caring for
oneself, “performing tasks, walking, seeing, hearing, speaking, breathing, learning, or
working.” In a recent case in the Eastern District of Michigan, the court noted that the
only limitation the plaintiff’s smoking habit created was “the inconvenience of finding
time to smoke a cigarette.” As another court noted in 2001, treating smoking as a
disability would “render somewhere between 25% and 30% of the American public
disabled under federal law because they smoke.” While the share of American adults
who 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 under
present 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 likely
cover the cost of taking time off without pay in less than a year, a proposal your
employer 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 rights
litigation, probate, and trusts and estates. Contact him with your legal questions at
daniel@gwinnlegal.com or visit the website at gwinnlegal.com. “Ask the Lawyer” is
informational only and should not be considered legal advice.