Accommodating Disabled Employee With Offensive Habit, Quirky Question # 100

Quirky Question # 100:

We have an employee who suffers from Post Traumatic Stress Disorder, is under the care of a psychiatrist through the Veterans Administration and takes medication for this condition.  He also chews tobacco at work.  There have been a number of employee complaints about the disgusting nature of the tobacco habit.  The employee claims that his psychiatrist feels that chewing tobacco helps him to reduce the stress level at work and we should allow him to continue.

We do not have a policy regarding the use of tobacco products at work, except for a designated smoking area away from the building entrance per a state law.  We would like to institute a new policy addressing the entire issue of tobacco use.  Could this be viewed as retaliatory?

Dorsey’s Analysis:

The starting point for the legal analysis of this question is the Americans with Disabilities Act (ADA). As with most ADA issues, the preliminary inquiry is whether the employee is disabled, i.e., does the person have a physical or mental impairment that substantially limits one or more major life activities; (there are two other facets of the disability definition that do not appear applicable to this fact pattern – record of impairment or regarded as having an impairment). A “major life activity” includes, by way of example, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

Here, as described in the question, the employee suffers from Post Traumatic Stress Disorder (PTSD), is taking prescription medication, and is under the care of a Veterans Administration psychiatrist. Despite the convergence of these three variables, it is not clear to me that this employee is necessarily disabled. To make a more definitive analysis, I would like to know the precipating cause of his PTSD, the medication he is taking and why, as well as the frequency and dosage. I also would want to know what his condition would be in the absence of the prescription medication. Would he be functional? Would he be able to care for himself? To work? Although more facts are needed to evaluate more carefully whether this employee is a person with a disability, for the purposes of this analysis, I will assume that your employee could establish that he met the statutory definition of a disabled employee.

It also would appear that your employee is able to perform the essential functions of his job, with or without a reasonable accommodation, another component of the analysis under the ADA. You have not included any facts suggesting that your employee is unable to handle the responsibilities of the job or that his performance is deficient in some other way.

Arguably, however, his use of chewing tobacco is critical to his ability to perform at work. His psychiatrist, at least, apparently feels that his use of chewing tobacco has a beneficial effect and enables the employee to reduce his PTSD-caused stress. Again, I would like to know more about the psychiatrist’s diagnosis. I also would like to know more about the risks to your employee (if any) associated with the cessation of his chewing tobacco. Similarly, it would help define the problem to know how often he chews (does he keep a wad of tabacco in his mouth all day), where he chews, etc.

Although these facts would inform the analysis further, it appears from the question that your employee chews enough tobacco that other employees have noticed and are offended by his habit. Let’s assume that allowing this employee to chew tabacco is the “reasonable accommodation” needed by your employee to enable him to be fully functional at work. The next issue that needs to be addressed, therefore, is whether your company can accommodate your employee’s conduct without suffering an undue hardship.

At first blush, it would appear that the answer to this inquiry is affirmative. For one thing, your company has tolerated the conduct for a period of time. A plaintiff’s lawyer could make the straightforward argument that the company’s acceptance of this habit (with its salutary effects for the employee) itself illustrates that the company is not experiencing an undue hardship by allowing him to continue to chew. Moreover, it would not seem as though there are significant costs associated with allowing your employee to chew tobacco.

But, as you note, his habit is grossing out his co-workers. In my view, the impact that one employee’s conduct has on co-workers should not be dismissed cavalierly. Certainly, with respect to some behaviors (I’ll leave those to your imagination), the habits or conduct could be sufficiently disruptive of the workplace that it created a significant morale problem or caused unnecessary tension in the work environment.

Your employee’s tobacco-chewing habit suggests to me that you should explore further whether the interests of the co-workers can be addressed. There may be a number of practical solutions that would minimize, if not entirely eliminate, the problems you describe. For example, consider prohibiting the use of chewing tobacco in certain areas – the cafeteria and other common areas (such as an employee lounge) come to mind. Employees understandably could find it distasteful if they are watching someone chew and spit tobacco while they are eating. Similarly, the employee could be prohibited from chewing tobacco during meetings or other functions involving multiple employees. Another practical solution worth exploring is whether the behavior could be confined to certain times of the day (e.g., before 9:00 a.m., during the lunch hour if away from your company’s facility, after 4:00 p.m.). This suggestion may or may not be practical (depending on the chewing employee’s needs), but reducing the amount of time the other employees have to observe this behavior may have some beneficial effects. Another way of potentially minimizing the offensiveness of this conduct to others would be to ask the employee to work in an office or cubicle where his conduct would be less visible to his co-workers. Especially if this solution was viable (it may not be), this simple step may largely solve the problem your company is confronting.

Finally, you inquire whether your company could simply adopt a policy banning the use of all tobacco products on company premises and, if such a policy were adopted, whether this action could be construed as retaliatory. In my view, adopting this policy would have few positive effects with respect to your company’s interaction with this particular employee. As you note, he certainly would be able to point out that the policy was solely directed at his conduct as there were no other employees chewing tobacco on your premises. Moreover, he could engage in the interactive process with regard to a disability accommodation and request that the company not enforce the policy as to him. To the extent your company rejected this request, there are at least three potential consequences. First, he could cease using these tobacco products and continue to function effectively as an employee. Unfortunately, this scenario seems unlikely, based on his pyschiatrist’s diagnosis. Second, he could abide by the policy, cease using tobacco and become increasingly stressed out to the point where his work performance was adversely affected. If this scenario unfolded, you would have a difficult decision as to how your company would address these performance deficiencies. Third, he could refuse to abide by the policy. If your company discharged him at that juncture, he could assert both that the company had failed to reasonably accommodate him, which it have easily done without experiencing an undue hardship, and that the company adopted a policy in retaliation for his assertion of his rights under the ADA. Given that his PTSD apparently was caused by his military service, I would be uncomfortable with the atmospherics of that fact pattern.

Although adoption of a “no tobacco products” policy would not be of much use as to this employee, that would not deter me from adopting the policy with regard to the remainder of your workforce. You do not want to have to confront this issue again, especially for an employee who has no disability whatsoever but simply likes to chew tobacco, much to the consternation of his co-workers.

Dorsey & Whitney

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