We have all seen various drug advertisements, where the announcer states, “Side-effects may include…” and goes on to list a litany of possible life-threatening conditions. What happens when an employee who is otherwise not disabled suffers disabling side-effects and is subsequently discharged for not doing his job? Is this employee protected by the Americans with Disabilities Act (“ADA”)? Was his employer obligated to try to find a reasonable accommodation? While the Supreme Court has not addressed these questions, a few circuits of the United States Court of Appeals have and are forming a consensus. Below is a look at the most recent decision by the Court of Appeals for the Third Circuit (covering Delaware, New Jersey, and Pennsylvania).
In Sulima v. Tobyhanna Army Depot, plaintiff Ed Sulima claimed he was discharged due to his disability in violation of the ADA. His employer claimed the ADA did not apply because he was not “disabled.” Under the ADA, an employee is disabled when he has “a physical or mental impairment that substantially limits one or more of [his] major life activities.”
Sulima argued that when he began taking weight loss medication (both prescription and over-the-counter), he began making frequent and extended bathroom trips, sometimes totaling two hours during a work shift. Sulima claimed these gastrointestinal difficulties (solely resulting from his medications) constituted a disability under the ADA.
The court, looking at this issue for the first time, stated that such claims are viable but that they require a different analysis since they are “somewhat different from a typical ADA claim.” To qualify for the ADA’s protections, an employee claiming side-effects-as-a-disability must show (1) the treatment is required in the prudent judgment of the medical profession, (2) the treatment is not just an “attractive option,” and (3) the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices. Applying this test, the court found the first factor was not met because according to Sulima’s doctor, the medications were not required – when the doctor heard about the side-effects, he told Sulima to simply stop taking them.
Thus, although it ultimately rejected Sulima’s ADA claim, the Third Circuit Court joined the Seventh, Eighth, and Eleventh Circuits in holding employees can bring side-effects-as-a-disability claims under the ADA. While employers covered by those circuits certainly need to take heed, this appears to be a growing trend of which all employers should be aware. In general, when an employee indicates an inability to perform tasks due to a physical or mental impairment, you should discuss whether the employee needs a reasonable accommodation. Your conversation may include a discussion of options including not taking the side-effect inducing drug. However, if you believe the impairment is due solely to side-effects of non-required medication and do not believe an accommodation is warranted, you should consult competent counsel to determine your obligations.
Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
