The Lacy Employment Law firm

The Lacy Employment Law firm

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Is Asthma a Disability? Yes, It Almost Always is Considered a Disability

Asthma can be considered a disability under the Americans with Disability Act (ADA).  But the definition of disability is not clearly defined under the ADA.  And whether asthma actually qualifies is subject to interpretation.

Just because you have asthma attacks, does not mean that you are protected.  Further, even if you are protected at work under the ADA, you might not be protected out of work with social security disability benefits.

Whether you are looking for a reasonable accommodation or to get disability benefits, you should understand:

  • Whether your asthma is a disability under the ADA; and
  • Whether your asthma qualifies you for social security disability benefits.

You a more likely to be considered disabled under the ADA than under the Social Security Act.

How to Determine Whether Asthma is a Disability Under the ADA

The facts of a particular situation will determine whether the court considers asthma to be a disability.

Let’s just say that having an asthma attack once when you were 12 likely wouldn’t qualify as a disability under the Americans with Disabilities Act (ADA).

How do you show that your asthma is a disability?  For your specific case, you’re going to have to show one of three things.  Under the ADA, a plaintiff (person bringing a claim) must show that she: 

  • (1) has a physical or mental impairment that substantially limits one or more major life activities; 
  • (2) has a record of such an impairment; or 
  • (3) is regarded as having such an impairment.

In law, we often refer to lists like the above as elements.  And we generally refer to all of the elements together as a test.

The test for disability is whether a plaintiff can prove one of the elements.  This is an “or” test.  As you can see, the list is separated by the word “or.”  That is how you know that the test only requires proof of one element.

Is Asthma Classified as a Disability Under the ADA?

Whether asthma is classified as a disability under the ADA depends on the severity of the medical condition, the lawyers’ advocacy, the judge, and perhaps even the jury. 

Judges have classified asthma as a disability in some cases and decided not to in others.

With cases that go to court, it’s never clear what will happen.

In court cases, judges sometimes decide lawsuits by just reading papers that lawyers present to the court.  

These papers, known as briefs, contain the lawyers’ legal arguments on behalf of their clients.  

The judge, after reading the briefs, can decide a case based on nothing more than papers that lawyers write; no jury, no trial, just legal documents.  

After the judge decides the case, the judge will issue what’s called an opinion.

The opinion will state the relevant facts and give the reason why the court decided the way it did.

Merit v. SEPTA

We are going to look at a case that helps explain whether a judge will find asthma to be a disability.  This opinion is from a case in a federal court in Pennsylvania, Merit v. Septa.

It is a real case decided by an actual judge.  In this case, the judge ultimately ruled against the plaintiff (person suing), Ms. Merit.  

In most cases, the court will consider asthma a disability. Let’s get that out of the way.  The EEOC provides asthma as an example of a disability.   

You just have to satisfy one of the three elements I talked about above.  

So, I want to talk about a case where the court found that the plaintiff did not have a disability.

In Merrit v. SEPTA, Ms. Merit claimed that he had asthma, migraines, and back pain that prevented her from being able to work.

With respect to asthma, the Ms. Merit stated that:

  • Asthma substantially limited her ability to breathe;
  • Cigarette smoke in the SEPTA workplace (her workplace) triggered her asthma;
  • Her smoke-filled workplace was the only cause of her asthma; and
  • If she avoided the smoke, her asthma would not flair up.

These were the basic facts of her case.  And they are the facts upon which she based her disability claim. 

Substantially limits one or more major life activities

Remember those elements above? And that there are three ways in which you can show a disability?  Well, we are going to talk about the first prong first.  

The court first determined whether her disability substantially limited one or more major life activities.  Because her work was the only cause of her asthma, the court analyzed whether her asthma limited her ability to work.

The court found that Ms. Merit was not limited from working in another job where she could work in a smoke-free environment.

Thus, her asthma did not qualify as a disability.  So, the takeaway, is that if your disability only affects your ability to work, and you can work in another job at the same company, you do not have a disability under the ADA.

In this case, she didn’t have a disability because she could easily move to a job in a smoke-free environment.

The court said that because her asthma did not prevent her from working at a broad classification of jobs, that it did not fit the definition.  

By a broad range of jobs, the court meant that if she was not around cigarette smoke, she was fine.  And she could do her job.  

This is unlike other disabilities where numerous jobs are restricted because of a disability. 

This court was likely being harsh.  And other courts might find differently.  But the point is this: if your asthma isn’t a significant impairment, it might not qualify as a disability. 

Record of Disability: She had None

The second element of the disability “test” is regarded as having a disability.  In Merit, the court found she had no record of a disability.  

The court based this based on her inability to show that her asthma limited any major life activity.  Thus, she had no record of a disability.

This is the reason why the first element (actual impairment) is so crucial for disability cases.  The other two elements are hard to prove.

If you cannot prove that your life has been restricted in some way, you likely cannot prove that you have a record of a disability.

Unfortunately, the plaintiff did not fare any better on the last element.  

Regarded as Disabled

Lastly, the court found that the plaintiff was not regarded as disabled.  This is the third element discussed above.

I’m sure this isn’t a shocker.  The court noted that Ms. Merit did not present any evidence that her coworkers perceived her as not being able to perform a broad range of jobs.

Her coworkers did not see her as disabled.  There was no evidence that they believed she couldn’t perform some job functions.  

And because of this, the court found that she was not disabled.

What are the Three Types of Asthma?

You should know which type of asthma you have before you contact your attorney.   Here are three common types for you to consider.

Nocturnal:  

Usually your symptoms are more prominent at night.  You may wake to coughing, breathing difficulty, restricted airways, or chest pains. From an employment standpoint, this type of asthma is very likely to be considered a disability.  Of course, this depends on severity.

Exercise-induced asthma:  

This type of asthma occurs normally when you work out.  These asthma attacks are normally coincide with a shortness of breath.  Usually the asthma attack stops a few minutes after stopping exercise.  Typically, doctors prescribe an inhaler for these types of asthma attacks. 

Allergic Asthma:

Asthma attacks are induced by allergens such as pollen or mold.  

A few types of over-the-counter drugs are also known to bring on asthma attacks.  Because these types of attacks occur during the day, it’s more likely that your employer will classify them as a disability.

Asthma is a chronic medical condition that should be taken seriously.   You may have a different type such as chronic asthmatic bronchitis.  It’s best to speak with your doctor and find out. 

Request a Reasonable Accommodation

If you have a severe type of asthma, you should consider requesting a reasonable accommodation.  

A reasonable accommodation is basically a request asking your employer to help you with your disability.

Your employer has to try and help you out if you request one.  But you must be the one to actually request it.  You should probably obtain a note from your doctor before making the request.


I recommend a short e-mail to your human resources (“HR”) department.  

Your e-mail to HR triggers your employer’s obligations to engage in the interactive process.  The interactive process means that your employer must work with you to come up with a reasonable accommodation.

Usually, you and your employer are able to come up with something that will allow you to work.  Your employer may deny your request.  

Or your employer may not actually think that you are disabled. We saw this with Ms. Merit.  Regardless, employers do generally try to work with employees.  They do not want to invite a lawsuit under the ADA.

Should you Request a Reasonable Accommodation?

This, again, is a very personal question.  Sometimes workers feel that their employer might discriminate against them if they admit that they have a disability.

There is certainly some truth here.  If this did not happen, we would not have disability discrimination lawsuits.  

I would say this, if your work starts to suffer, you should seriously consider requesting a reasonable accommodation.

With asthma, your work could certainly start to suffer.  Although the law is not perfectly clear, it might make sense to ask for the accomodation anyway.  

You do not want to be terminated.  And you certainly do not want your employer to fire you when a reasonable accommodation could improve your work.

Also, once you request an accommodation, employers tend to be on their best behavior.  Again, they do not want to invite an employment lawsuit.

Sometimes, however, supervisors still discriminate.  If your supervisor starts discriminating after you have requested a reasonable accommodation, you should document it.

Make sure that you store and save these incidents of discrimination.  I highly recommend using technology. Emails to yourself are great.

E-mails are timestamped.  If you ever want to consider suing later, your employment lawyer will be really happy to see that you documented all the instances of discrimination with time-stamped e-mails.  

Suing for Disability Discrimination under the Americans with Disabilities Act

Under the ADA, you could alway sue if your employer terminated your employer for damages in federal court.

You would have to go through the administrative process with the Equal Employment Opportunity Commission (“EEOC”). 

You would file a charge with the EEOC.  The EEOC would then investigate your claim.  After some time passes, the EEOC would then issue a right to sue letter.  And you would sue in federal court.

If you are successful, you will receive some type of compensation.

 Your damages would consist of back pay, front pay, emotional distress, and sometimes punitive damages.

  • Back pay: where you get the money you should have made had your employer not terminated you.
  • Front pay: where you claim that you can no longer work at your previous employer.  As a result, you are seeking damages from the time of trial to when you can find another position.
  • Punitive damages: where the court awards you money intending to punish your employer for its actions.

Lawsuits are expensive.  Even though your employment lawyer will likely take your case on contingency, it takes a long time and you may not receive as much as you want.

With asthma, a disability that could go either way, it might be wise to work with your employer.  Especially if you have a good job you want to keep.

Asthma and Social Security Disability Benefits 

Social security disability differs from disability claims under the Americans with Disabilities Act (ADA).   

Under the ADA, the standard for disability focuses on preventing discrimination and making sure that employees have rasonable accomodations so they can work.

Social Security Disability benefits, however, focus on whether your disability renders you unable to work.

According to the Social Security  Administration:

The law defines disability as the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 

Disability is strictly defined under the Social Security Act.  Social Security Disability beneficiaries are among the most severely impaired in this country  

You should not count on getting social security benefits for your asthma unless you are truly unable to perform any job.

In most cases, asthma will not qualify. 

Most people look for information regarding social security benefits.  But really they should first determine whether a reasonable accommodation would allow them to do their job.

Your employer will try to find you a reasonable accommodation, if you need one.  But you don’t want to be in a position where you cannot find a job and you are banking on disability benefits. 

Conclusion

We spent most of our time talking about the first element, the limitation of life activities.  And that’s because it’s usually the most important.  If you make it over that hurdle, you can usually prove that you have a disability.

As you can see from the above, a court might not think so.  But it’s usually because you failed to show how it affects you.  

If you’re wheezing every hour, then it’s likely going to qualify. If you can only show that it affects you once in a while, then it’s much less likely.

It’s a case-by-case inquiry.  And it depends on the facts of each case.  That’s why it’s hard to give a straight answer on whether it does or does not.  

That’s also a lawyer’s job; that is, to figure out the facts, apply them to a new case, and advocate for a client.

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