Q: I’ve smoked since I was in high school, a habit of packing more every day
than 20 years. I’ve tried quitting multiple times over the years but I felt so anxious and
nervous 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 have a little leeway when I come back
that I could finally stop forever. I never would have thought that something like this would be possible
recently. An employee who is a recovering alcoholic may 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 break the habit but that’s it. He said smoking
is not a disability. That doesn’t seem right. I’m just as addicted as my colleague, why
should she get accommodation but I don’t?
A: While the relatively addictive properties of alcohol and nicotine can be
discussed, what is not disputed is that nicotine addiction is not considered 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 “significantly restricts one or more important life activities.” As described in a case from Ohio,
Alcoholism can “affect multiple areas of … life, including family issues, relationships
Issues, physical/health issues, and emotional issues.” Under the law, folks
Living with a disability, including alcohol dependence, are entitled to an “adequate
Accommodation” that enables them to carry out the essential elements of their work. the
However, the protection of alcohol dependents is quite limited
on the help your colleague received: time off to participate in rehabilitation or support
Services. Employers do not have to “get close” to alcohol dependent people.
lowering the standards expected of workers.
The ADA also provides protection for those addicted to illicit drug use, but who
Protection measures are similar to the limited housing options for addicts
Alcohol. Nicotine addiction is not specifically mentioned in the ADA; it doesn’t appear either
in Michigan’s Persons with Disabilities Civil Rights Act.
Some are of the opinion that there is any protection for drug addicts at all
Sources, due to the efforts of the tobacco lobby, the ADA as potentially “legal
Recourse against employers who refuse to hire smokers.” An earlier version of the ADA
specifically excluded individuals with “Psychoactive Substance Use Disorders” (including
nicotine addiction); The passed laws excluded “psychoactive use disorders.”
due to current use of illegal drugs.” Since cigarettes are not an illegal drug,
Nicotine addiction was not specifically exempted from the law. However, smokers could arguably be protected from discrimination in hiring and firing under the ADA if this is the case
are perceived as disabled – that they are less capable and more powerful because of their addiction
expensive to employ, even if smoking itself is not a disability.
However, case law on the subject has clearly advocated finding this
Smoking cigarettes is not a disability. Although nicotine addiction can impair the ability
choosing not to smoke” and limiting the “body’s ability to be symptom-free when it isn’t
Smoking,” according to one court, does not significantly restrict the most important activities in life – care
himself, “perform tasks, walk, see, hear, speak, breathe, learn, or
Work.” In a recent case in the Eastern District of Michigan, the court found that the
The only limitation caused by the plaintiff’s smoking habit was “the inconvenience of finding.”
Time to smoke a cigarette.” As another court noted in 2001, smoking is considered a
Disability would “represent anything between 25% and 30% of the American public
disabled under federal law because they smoke.” While the proportion of American adults
Smokers decreased to 12.5% by 2020, that’s still around 30.8 million people.
While your desire to quit smoking is commendable, your employer has no obligation to do so
applicable law to provide you with paid time off (or arguably any time off) to attempt.
However, the average price for a pack of cigarettes in Michigan varies
$8, your habit of packing every day is costing you about $3,000 a year. You probably could
cover the cost of an unpaid sabbatical in less than a year, a suggestion from you
Employers could agree to this (with a medical certificate even as sick leave).
Much luck!
Daniel A. Gwinn, a Troy attorney, specializes in labor law and civil rights
Litigation, Estates, and Trusts and Estates. Contact him with your legal questions at
[email protected] or visit the website at gwinnlegal.com. “Ask the Lawyer” is
informational only and should not be construed as legal advice.
