COM 0942.112 2006-2008 - Laserfiche WebLink

Home

No Constitutional Right to Smoke 40 Id. at 480, 482. 11 Id. at 492. 42 See Rossie v. State Dept of Revenue, 133 W is. 2d 341 (1986). 46 to. at 353. 44 See Robin Hobart, Preemption - Taking the Local out of Tobacco Control, American Medical Association (2003) available at <http://www.smokelessstates.org/downloads/2003_Preemption.pdf > (visited on June 22, 2005). 11 See id. 46 See the Americans for Nonsmokers' Rights website, http://www.no-smoke.org/, see also American Lung Associa- tion, State Legislative Actions on Tobacco Issues-Summary Reports: Preemptive State Tobacco Control Laws and Affected Provisions (2005), available at http://Siati.lungusa.org/appendixe.asp (visited on June 22, 2005). 41 See the Americans for Nonsmokers' Rights website, http:/Iwww.no-smoke.org/. 48 For a list of states with "smoker protection laws," see the American Lung Association's website, available at http:// slati.lungusa.org/appendixf.asp (visited on June 22, 2005). 49 See, e.g., Miss. CODE. ANN. § 71-33 (2004) (making it "unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours'); Coro. Rev. STAT. § 24-34-402.5 (2004) (making it "an unfair employment prac- tice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibili- ties of a particular employee or group of employees, rather than to all employees of the employer, or (b) Is neces- sary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest"). s0 Many smoker protection laws contain some sort of exception allowing an employer to restrict off-duty smoking if the restriction relates to an essential aspect of the job. See, e.g., Coto. Rev. STAT. § 24-34A02.5, supra note 49; Mo. Rev. STAT. § 290.145 (2004) (making an exception when the off-duty use of tobacco products "interferes with the duties and performance of the employee, his coworkers, or the overall operation of the employer's business" and exempting "religious organizations and church-operated institutions, and not-for-profit organizations whose princi- pal business is health care promotion"). Some smokers argue that policies prohibiting employees from smoking both on and off the job violate the federal Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213 (2004). According to their rationale, smokers are protected from discrimination under the ADA because they are "disabled." However, the ADA explicitly states that "[n]othing in this chapter shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment in transportation or in places of public accommodation Id. § 12201(b) (2004). Moreover, the only published case addressing the issue holds that smoking is not a disability within the meaning of the ADA. See Brashear v Simms, 138 F. Supp. 2d 693, 694-95 (D. Md. 2001) ("[A]ssuming that the ADA fully applies in this case, common sense compels the conclusion that smoking, whether denominated as 'nicotine addiction' or not, is not a'disability' within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of 'disability,' which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke. In any event, both smoking and 'nicotine addiction' are readily remediable If the smokers' nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.") 62 See, e.g., Jacobson v Massachusetts, 197 U.S. 11, 25 (1905) ("According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."). 9