The saying that the cure is sometimes worse than the disease has taken on new meaning for employers in light of a recent decision by the U.S. Court of Appeals for the Third Circuit. In Sulima v. Tobyhanna Army Depot, No. 08-4684, 2010 U.S. App. LEXIS 7459 (3d Cir. Apr. 12, 2010), the Third Circuit held that the side-effects of medical treatment can qualify as a disabling impairment under the Americans with Disabilities Act ("ADA"), even if the underlying condition does not.
The ADA prohibits covered employers from discriminating against employees on the basis of disability, and requires covered employers to reasonably accommodate disabled employees. A person is considered "disabled" under the ADA if he or she has a physical or mental impairment that substantially limits a major life activity. The phrase "major life activity" encompasses a wide array of activities, such as standing, walking, driving, seeing, speaking and working, to name just a few. Regulations issued by the Equal Employment Opportunity Commission define "impairment" as "any physiological disorder, or condition...affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine."
Sulima centered on an ADA claim brought by a plaintiff suffering from morbid obesity and sleep apnea. He alleged that he was forced into participating in his employer's voluntary layoff program because he was disabled. The disability at issue, however, was neither the obesity nor the sleep apnea. Rather, it was the side-effects of the medications he took to treat those conditions, including both over-the-counter and prescription weight loss pills and laxatives. These medications caused him to require frequent visits to the restroom, which amounted to as many as two hours during a given work shift, according to his supervisor. Mr. Sulima's doctor changed the medication regimen, but Mr. Sulima's employer transferred him to a different position nevertheless. Mr. Sulima accepted his employer's voluntary layoff offer only a few days later, and then brought his claim under the ADA.
Significantly, Mr. Sulima presented no evidence to show that his obesity or his sleep apnea substantially limited any of his major life activities. Rather, his ADA claim centered on his gastrointestinal problems, which he admitted were caused solely by the medications he was taking to help him lose weight. Thus, the case presented a question of first impression in the Third Circuit: Can a plaintiff sustain a claim under the ADA based solely on a condition caused by treatment of an underlying condition that is not itself disabling?
Sulima makes clear that in certain circumstances, the answer is "Yes." The side-effects of medical treatment can constitute an impairment under the ADA if (1) "in the prudent judgment of the medical profession," the treatment is required; and (2) there is no equally effective treatment option that would not cause such severe side-effects. Mr. Sulima did not meet this standard, because he did not convince the court that the medication was required in the prudent judgment of the medical profession, and summary judgment was granted to his employer.
Ramifications for Employers:
Employers now must be particularly sensitive to employees who claim that they are substantially limited in a major life activity by side-effects of medication for a condition that does not itself substantially limit any of their major life activities. For example, an employee with high blood pressure could suffer from severe dizziness as a side-effect of her medication, which in turn could substantially limit her ability to stand or walk. While the high blood pressure itself might not have limited her major life activities in any significant way, the side-effects of her medication could drastically change her life.
If presented with such a situation, it is important for employers to take the matter seriously. Most employers are not in a position to determine whether any given treatment is required "in the prudent judgment of the medical profession," nor whether any other equally effective treatment options are available. Therefore, employers should err on the side of caution and engage in the interactive process with the employee to avoid an ADA claim—and if an employee does file a charge of disability discrimination, employers should contact their labor & employment counsel immediately.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
