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The ADA does not enforce accommodations for a disabled person if that accommodation is considered to be a "direct threat."
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(3) Direct threat
The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.
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(b) Qualification standards
The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.
According to the ADA, someone who poses a direct threat to the health and safety of others is not considered "qualified" (for protection under ADA). Therefore, someone who smokes in the presence of other people would not be considered a "qualified individual", and would therefore not be protected under the ADA, because they are posing a direct threat to the health and safety of others.
The ADA clearly defines discrimination towards qualified individuals as being illegal.
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Sec. 12132. Discrimination
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
If someone is not qualified, then they are not protected.
In other words, the ADA not only doesn't protect people's "right" to smoke in other people's faces, but also protects those other people's right not to be bombarded with second-hand smoke.
I should also add that the ADA legally outlines the right for employers to ban drinking and illegal drug usage in the workplace. Smoking nicotine over the age of 18 is not illegal, however, it should be noted that if the ADA allows employers to ban drinking and illegal drug usage, it's not really far out for individual workplaces to ban smoking too. After all, the general public is not forced to suffer the health effects of someone drinking alcohol near them--and it can be banned--yet they are forced to suffer the health effects of a smoker smoking near them. So the idea of banning smoking is even more reasonable than what is already legally in place under the ADA.
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(c) Authority of covered entity
A covered entity
(1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
(2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(3) may require that employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);
This post reminds me of the post suggesting Christianity should be outlawed.
What America needs is Josef Stalin. Kill em all.
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Originally Posted by stillkit
Should those who suffer from AIDS, alcoholism or any other chronic disease be barred from suffering from their disease in restaurants, bars, hotels, parks and other public places? Can't a public health concerns be used to keep them out from amongst the healthy?
Sounds like a silly question, doesn't it? Who would want government to tell someone with a chronic disease that he's not welcome to eat out, enjoy a movie or go to the park so long as he's exhibiting symptoms of his disease? He can stay home and do his suffering there.
But, it happens every day to those who suffer from another debilitating disease and nobody seems to care too much about it: Tobacco dependence.
The American Medical Association, the World Health Association, the National Institute of Health and the Congress of the United States all consider tobacco dependence to be a chronic disease. It meets the five criteria the AMA uses to consider a condition an actual disease: a pattern of symptoms, chronicity, progression, subject to relapse, and treatability.
Tobacco dependence is a chronic disease that often requires repeated intervention and multiple attempts to quit.
Tobacco dependence disorder is a chronic relapsing condition….A chronic disease management approach increases both short- and long-term abstinence from smoking.
Yet, in spite of this, chronic tobacco users are routinely banned from mingling with non-users by law, something which would never happen to those with a different disease.
Does this change the dynamics of the smoking debate? Is it now a civil rights issue relating to those who suffer from chronic diseases? Why, or why not?
Should sufferer's of chronic disease be barred from public places?
Skillkit, I sincerely hope you have rethought this intolerance for the ill. You never know when you your self will be chronically ill from what you were exposed to in your lifetime at no fault or control of your own.
Should sufferer's of chronic disease be barred from public places?
Skillkit, I sincerely hope you have rethought this intolerance for the ill. You never know when you your self will be chronically ill from what you were exposed to in your lifetime at no fault or control of your own.
I'm not suggesting they should be. The thread is actually about tobacco dependence as a chronic disease and how it being a disease might affect the smoking debate. So far, most everyone believes it won't to any great degree (I disagree) and there are some who just flat refuse to accept the idea at all because it hasn't been called a disease by their favorite group...yet.
I'll admit I didn't do a very good job of titling the thread, though. I'm never very good at that. And, I sort of had it in the back of my mind to let a conversation develop along those lines, then throw in tobacco dependence disease later, as a sort of "gotcha," but decided that would be dishonest.
You are missing a basic point, NOBODY is obligated to hire ANYONE. It is the employers choice completely. If they hire a monkey over a smoker that up to them.
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Originally Posted by stillkit
I'm not suggesting that a company should hire smokers and let them smoke on the job (however, if they wanted to, I see no reason why they couldn't, do you?). That's not what companies are doing. They are refusing to hire people simply because they smoke, regardless of whether or no smoking is allowed in the workplace.
Yes, some chronic diseases are not good for some certain occupations. As you say, a person with Palsy probably wouldn't make a good brain surgeon. But, I dare say a hospital would be opening themselves to a law suit if they refused to hire an otherwise qualified candidate with Palsy, don't you? If the candidate had a medical degree and the demonstrated ability to do the job, in spite of his disease, then refusing to hire him because he has Palsy would be risky. That would seem to be a clear case of discrimination.
However, when it comes to those with chronic tobacco disease, otherwise capable and qualified candidates CAN be refused employment for no other reason than that they have nicotine, a perfectly legal substance, in their blood.
You tell me....why is it unfair to refuse to hire the qualified sufferer of Palsy, but OK to refuse the hire the one with chronic tobacco disease?
You are missing a basic point, NOBODY is obligated to hire ANYONE. It is the employers choice completely. If they hire a monkey over a smoker that up to them.
So, let's say you're a diabetic. You apply for a job for which you are well qualified. You have the experience and the education to do the job. Your diabetes is not, and will not, be a factor in your job performance.
But, you're turned down because you are a diabetic. That's the only reason you didn't get the job.
So, let's say you're a diabetic. You apply for a job for which you are well qualified. You have the experience and the education to do the job. Your diabetes is not, and will not, be a factor in your job performance.
But, you're turned down because you are a diabetic. That's the only reason you didn't get the job.
You'd be OK with that?
Since the employer cannot ask questions about medical history during a pre-employment interview, the scenario you are describing would not exist unless the potential employee volunteered the information.
Doing what you describe would be grounds for a claim for discrimination under the ADA.
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