I get this question from time to time:  “Do you have a list of recognized disabilities under federal law and/or the Fair Housing Act (FHA).”  Unfortunately, the answer is no.  There is no complete list of disabilities to review like a checklist.  Now, that being said, many disabilities are universally recognized while others are appropriately certified by a medical/mental health care professional.  There is, however, one habit or custom that is not recognized as a disability under applicable law:  smoking.

While legal under federal law, when it has been raised, the courts have concluded that smoking is not a disability.  The cases have noted that a resident who smokes may not invoke the anti-discrimination laws (such as the FHA or Americans with Disabilities Act (ADA)) seeking a policy change to permit them to smoke indoors, because “Congress could not possibly have intended the absurd result of including smoking within the definition of ‘disability,’ which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke.”   Back in 2001, a U.S. District Court in Maryland held that even assuming that the ADA fully applied in a specific case, “common sense compels the conclusion that smoking, whether denominated as ‘nicotine addiction’ or not, is not a ‘disability’ within the meaning of the ADA.” 

So, what is the point?  Because smoking is not a recognized disability, management does not have to permit it to be used to ask for a reasonable accommodation or reasonable modification.  Indeed, my experience teaches that requests for reasonable accommodations are routinely made by non-smokers with medical conditions that are related to second hand smoke or smoke allergies.  Resident with these types of disabilities may well have legal protections from exposure to smoke under the FHA and management is required to review and then evaluate their reasonable accommodation requests.  Does that mean you should treat your residents who smoke as second class citizens?  Of course not.  Only that smoking cannot be used to require you to grant a reasonable accommodation or reasonable modification request.

Just A Thought.