Side effects of medication may qualify a person for protection from disability discrimination pursuant to the Americans with Disabilities Act (“ADA”). The ADA considers an employee to be disabled if he or she has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2). A recent case before the Third Circuit, Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. (PA) Apr. 12, 2010), the plaintiff argued that side effects of a medication created a disability. The Third Circuit held that the effects of a treatment for a medical condition could constitute a disability if the employee is able to demonstrate the following elements:
1. The medication or treatment is required “in the prudent judgment of the medical profession,”
2. The medication or treatment is not just an “attractive option,” and
3. The medication or treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.
Accordingly, if you meet the 3 elements set forth above and have been discriminated against by your employer as a result of any side effects of medication or treatment, you may have an actionable disability discrimination claim pursuant to the ADA.
Dated: April 29, 2010 – Castronovo & McKinney – Tom McKinney