SMOKING IS NOT A RIGHT

 

Courts that have reviewed the issue have held that smoking is obviously not a fundamental right. See Brashear v. Simms, 138 F.Supp.2d 693, 694 (D.Md. 2001); Webber v, Crabtree, 158 F.3d 460, 461 (9th Cir. 1998).

 

Courts have even held that an employee does not have a right to smoke off the job. See Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987); City of North Miami v. Kurtz, 653 So.2d 1025 (Fla. 1995) (No state or federal constitutional right to smoke).

 

Furthermore, for example, under the Civil Rights Act of 1964, “save for religion, the discriminations on which the Act focuses its laser of prohibition are those that are either beyond the victim’s power to alter or that impose a burden on an employee on one of the prohibited bases.” See Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir. 1980).

 

It should not come as a surprise that smoking, whether denominated as “nicotine addiction” or not, is not a disability under the Americans with Disabilities Act (ADA). See Brashear v. Simms, 138 F.Supp.2d 693, 695 (D.Md. 2001).

 

Furthermore, smoking was addressed in the ADA in the federal statute and in the Department of Justice (DOJ) implementing regulations for the ADA.

 

42 U.S.C. § 12201(b) states, in pertinent part:

 

Nothing in this Act shall be construed to preclude the prohibit of, or the imposition of restrictions on, smoking in places of employment covered by title I, in transportation covered by title II or title III, or in places of public accommodation covered by title III. (citations omitted).

 

The U.S. Department of Justice (DOJ) interpreted its ADA Title II regulations in 28 C.F.R. Part 35, Appendix A, and its Title III regulations in 28 C.F.R. Part 36, Appendix B.

 

The implementing regulations for smoking under the ADA are 28 C.F.R. § 34.132 for Title II and 28 C.F.R. § 36.210 for Title III.

 

In its interpretations of its smoking regulations, the DOJ states:

 

28 C.F.R. § 35.132 Smoking

 

Section 35.132 restates the clarification in section 501(b) of the Act that the Act does not preclude the prohibition of, or imposition of restrictions on, smoking in transportation covered by title II. … The reference to smoking in section 501, however, merely clarifies that the Act does not require public entities to accommodate smokers by permitting them to smoke in transportation facilities. See 28 C.F.R. Pt. 35, App. A., § 35.132 (7-1-06 Edition), page 554.

 

28 C.F.R. § 36.210 Smoking

 

Section 36.210 restates the clarification in section 501(b) of the Act that the Act does not preclude the prohibition of, or imposition of restrictions on, smoking. …The reference to smoking in section 501, however, merely clarifies that the Act does not require public accommodations to accommodate smokers by permitting them to smoke in places of public accommodations. See 28 C.F.R. Pt. 36, App. B, § 36.210 (7-1-06 Edition), page 701.

 

Moreover, The U.S. Court of Appeals for the Second Circuit has specifically held that 42 U.S.C. § 12201(b) expressly permits a total ban on smoking. See Staron v. McDonald’s Corp., 51 F.3d 353, 357 (2nd Cir. 1995).

 

Therefore, it is well-settled that employers, public entities, and public accommodations can ban smoking in order to protect persons with disabilities caused or exacerbated by second hand tobacco smoke under the Americans with Disabilities Act without regard to smoking rights.

 

See also the law synopsis by Samantha K. Graff, Tobacco Control Legal Consortium, There is No Constitutional Right to Smoke (2005).

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu

 

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