Side Effects May Include: Headaches, Nausea, and Litigation
The Third Circuit holds that a “disability” under the Americans with Disabilities Act can include an impairment resulting solely from the side effects of medication, regardless of whether or not the underlying health problem itself is disabling.
Summary of the Case
In Sulima v. Defense Support Services, LLC, No. 08-4684, ___ F.3d ____, 2010 U.S. App. LEXIS 7459 (3d Cir. April 12, 2010), the United States Court of Appeals for the Third Circuit decided, for the first time, that side effects brought on by medication may, under certain circumstances, constitute a disabling impairment subject to the protections of the Americans with Disabilities Act (“ADA”). Despite its holding, however, the Court of Appeals upheld the lower court’s grant of summary judgment in favor of the employer because the plaintiff could not meet his burden in showing that the particular side effect at issue was sufficiently disabling to support his claim.
The plaintiff in Sulima was morbidly obese and suffered from sleep apnea, likely related to his obesity. To combat these problems, the plaintiff took various weight-loss medications that were prescribed to him and caused him to use the restroom frequently. On several occasions, he would spend up to two hours in the restroom during the workday. The plaintiff claimed that he was ultimately laid off because of his gastrointestinal problems, in violation of the ADA. The U.S. District Court for the Middle District of Pennsylvania dismissed the plaintiff’s claim pursuant to the employer’s motion for summary judgment.
On appeal, the Third Circuit noted that the plaintiff did not argue that his gastrointestinal problems were caused by anything other than the weight-loss medications that he was taking. In other words, the plaintiff did not claim that his obesity or his sleep apnea should be considered disabilities under the ADA. Rather, the plaintiff staked his claim on his contention that he was substantially impaired solely due to the side effects of his prescribed medications.
In an issue of first impression for this Federal Circuit, our Court of Appeals agreed with a handful of other Federal Circuits that had confronted this same issue in holding that side effects may, under certain circumstances, constitute a disabling impairment under the ADA. The Court relied primarily on a previous decision from the Seventh Circuit, Christian v. St. Anthony Med. Ctr., 117 F.3d 1051 (7th Cir. 1997), which had developed a three-part “test” that can be used to determine if the side effects of treating a condition are sufficiently disabling even where the underlying condition itself is not:
(1) the treatment or medication is required “in the prudent judgment of the medical profession”;
(2) the treatment or medication is not just an “attractive option”; and
(3) the treatment or medication is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.
Applying the foregoing test to the plaintiff’s situation in Sulima, the Court determined that the plaintiff’s gastrointestinal problems, caused by his weight-loss medication, were not sufficiently disabling to constitute an actionable claim under the ADA. Even assuming that the medications’ side effects constituted a substantial limitation on a major life activity, the plaintiff failed to prove that the weight-loss medication was “medically necessary.” Thus, the plaintiff was unable to satisfy the first element of the three-part Christian test. In upholding the lower court’s dismissal of the plaintiff’s claim, the Court reasoned:
For a treatment’s side effects to constitute an impairment under the ADA, it is not enough to show just that the potentially disabling medication or course of treatment was prescribed or recommended by a licensed medical professional. Instead, following the Christian test, the medication or course of treatment must be required in the “prudent judgment of the medical profession,” and there must not be an available alternative that is equally efficacious that lacks similarly disabling side effects. The concept of “disability” connotes an involuntary condition, and if one can alter or remove the “impairment” through an equally efficacious course of treatment, it should not be considered “disabling.”
Implication for Employers
Despite the fact that the plaintiff’s claim was dismissed, the Third Circuit’s holding in Sulima provides yet another example of how the ADA is evolving into a much more “employee-friendly” statute. This transition began in 2008, when the ADA was amended to greatly expand the meaning of “disability” in the eyes of the federal government. (Typically, employers found a great deal of success in arguing that the plaintiff was not “disabled” within the meaning of the ADA. After the ADA amendments took effect on January 1, 2009, however, that argument is much harder to make.) Now, in light of Sulima, employers within the Third Circuit must worry not only about medical conditions that might constitute disabilities under the ADA, but also the side effects caused by treatments or medication for conditions that are not even disabilities in the first place!
Rhoads & Sinon regularly represents employers on matters relating to the ADA and all other aspects of employment law; from handbook reviews to litigation defense. If you have any questions regarding the Third Circuit’s decision in Sulima, or any other employment law issues, please do not hesitate to contact us.