Disability Discrimination – Side Effects of Medication

By Thomas McKinney

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

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.