Third Circuit grants ADA protection for side effects of medication; the U.S. Senate has nothing on Ms. Stucky's fourth graders.

by Kirsten E. Small

This morning I visited my son's fourth grade class to talk about the Supreme Court and the process for confirming a new justice. The students had a great time questioning the "nominee" (their teacher, Ms. Stucky), and then had a rigorous debate over her qualifications, ability to be fair, and whether or not she had a hidden agenda (seriously!). In the end, the "Senate" narrowly confirmed Mrs. Stucky to the Supreme Court. Would someone please get the President on the line for me? ...

In other (some would say "actual") news, the Third Circuit on Monday ruled that side effects from a medication can constitute a "disability" under the Americans with Disabilities Act and the Rehabilitation Act, even if the condition for which the medication is prescribed is *not* a disability. The ruling, in Sulima v. Tobyhanna Army Depot, can be accessed here. The Third Circuit joins the Seventh Circuit in explicitly holding that side effects from medication (in this case, gastrointestinal disress from a weight-loss drug, which required the plaintiff to take long bathroom breaks during work hours) can constitute a "disability" under the ADA and the RA. The Eighth Circuit and the Eleventh Circuit have indicated that they, also, would treat side effects from medication as a possible disability.

The Third Circuit adopted the Seventh Circuit's three-part test for determining whether side effects of a medication may constitute a disability: "(1) the treatment is required “in the prudent judgment of the medical profession,” (2) the treatment is not just an “attractive option,” and (3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices." Applying this test, the court concluded that Sulima was not disabled because his doctor changed the medication after Sulima reported his work problems, indicating that the treatment was not "required."