Impairment Caused by Medication’s Side Effects May Be a Disability, Even if Underlying Condition is Not

The 3d U.S. Circuit Court of Appeals has ruled, consistently with the Seventh, Eighth, and Eleventh Circuits, that the side effects of medication may render an individual “disabled” for purposes of the Americans with Disabilities Act, even though the underlying condition for which the medication was prescribed does not.  Sulima v. Tobyhanna Army Depot, 3d Circ., No. 08-4684, April 12, 2010. 

Ed Sulima was employed by defense contractor Defense Support Services, LLC (known as “DS2”), and in 2005, was assigned to work as an electronics technician at Tobyhanna Army Depot in Pennsylvania.  Sulima, who has been diagnosed as morbidly obese and who suffers from sleep apnea, was taking a prescription weight-loss medication at that time.  As a result of side effects related to the medication, Sulima took numerous and extended bathroom breaks during the workday.   When Sulima’s supervisors asked him about the breaks, Sulima explained the side effects of his medication, and said he would ask his doctors whether a different prescription was available with fewer side effects.  However, Sulima continued to take long bathroom breaks, and Tobyhanna informed him that he would be transferred out of his work group. 

After being informed of the transfer plans, Sulima brought a note from his doctor which stated that the medication was being changed and the breaks would be less frequent.  Nevertheless, Tobyhanna decided to move Sulima out of his work group.  No other similar jobs were available; Sulima accepted a “voluntary” layoff on December 12, 2005, and found employment elsewhere.  He then sued both DS2 and Tobyhanna under the ADA and the Rehabilitation Act, arguing that the two companies were his “joint employer” and that he had been laid of due to a disability or perceived disability.  The district court granted summary judgment to both defendants, finding that Tobyhanna was not Sulima’s joint employer, and that Sulima had failed to raise a triable issue of fact against DS2 under the ADA. 

The Third Circuit upheld the lower court’s decision, holding that although the adverse side effects of Sulima’s medication could have caused an impairment rising to the level of a “disability” under the ADA, that category of disability is subject to certain limitations.  Consistent with the Seventh Circuit’s decision in Christian v. St. Anthony Med. Ctr., 117 F.3d 1051 (7th Cir. 1997), the Third Circuit held that an impairment caused by the side effects of a prescribed medication may constitute a disability if the plaintiff can show that the medication is required “in the prudent judgment of the medical profession” and that there is not an available alternative that is equally effective but that lacks disabling side effects.

In this case, Sulima could not show that the medication was required in the prudent judgment of the medical profession, based on the fact that when Sulima’s doctor was informed of the adverse side effects, he simply told Sulima to stop taking that medication.  In addition, there was no evidence to show that the medication being prescribed was the only effective treatment for Sulima, and there was no evidence that any other treatments would have caused the same side effects.  Therefore, Sulima did not demonstrate that the medication’s side effects created a “disability” under the ADA.  The Court further found that Sulima did not allege facts sufficient to show that DS2 regarded him as disabled within the meaning of the ADA, or that his request for bathroom breaks was a protected activity that led to retaliation by the company.

Employers should not confuse the question of side-effects-as-a-disability with the general issue of “mitigating measures.”  One of the specific purposes of the amendments to the ADA, effective in January 2009, is that the question of whether an impairment is “substantially limiting” under the ADA must be judged “without regard to the ameliorative effects of mitigating measures,” which might include mediations.  For cases in which an individual’s medication ameliorates or erases the limitations of a physical or mental disability, an analysis of whether that person is disabled must be made without reference to the medication’s effects.  However, that provision does not include situations, like Sulima’s, in which a plaintiff is claiming disability only as a result of the side effects of medical treatment for a health condition that, standing alone, does not constitute a disability.   Here, the medication is the issue, and must be taken into account under the standard employed by the Third Circuit.