Q. I own and run a paper company in Texas. Some of my employees who are cigarette smokers regularly take more breaks than the two, 15-minute breaks that are allowed under their employment contract—and some of the nonsmokers in the office are getting angry. When I confront the smokers about this conduct, I am increasingly hearing them make an unusual claim—that they have a “disability” and are protected by law. What should I do?
A. Texas law states that, in large part, employees who smoke are not entitled to more or longer breaks than nonsmoking employees, and smoking is not a protected disability that must be accommodated under the ADA. If you allow your employees to take breaks during the workday, you have the right to choose the number, length and location of these breaks. You can also legally deny any extra breaks for smoking.
Under the Texas equivalent of the ADA—the Texas Commission on Human Rights Act (TCHRA)—smoking by itself is not considered a “disability.” If some employees insist that they are covered by either the ADA or TCHRA, they would have to show that they are so dependent on nicotine and tobacco products as to suffer from a disabling condition. (Under certain circumstances, an addiction can be considered a disability under the ADA.)
But even if some smoking employees were able to show that their addiction was so bad that it substantially impaired a major life activity, such as working, walking, sleeping or breathing, you would be able to discuss reasonable accommodations other than extra breaks for smoking. Remember, you do not have to accept every accommodation that an employee requests.
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