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Blowing smoke about nicotine and tobacco addictions

Smoking is banned in most workplaces but should addicted employees be accommodated?

By Jeffrey R. Smith

Taking a smoke break is getting harder and harder these days. And whether you’re for it or against it, there’s no doubt smokers have fewer place to do it. This includes at work, where most workplaces are like buildings everywhere — you can’t smoke inside, nor within a specified distance from entrances.

Smoke breaks have been a source of controversy at work sometimes — is it fair to allow employees who smoke more opportunities to take some time from work to light up? Should non-smoking employees have an equal amount of breaks? Should employees be allowed to take time to smoke during work hours at all? It can be a tricky balance for employers.

But many people who smoke can’t help it, whether they want to or not. While smoking rates are decreasing among the population, most people know of someone who has tried to quit unsuccessfully. It’s common knowledge that the nicotine in cigarettes is addictive, so many smokers are simply addicted, making it difficult to stop smoking. And addiction is considered a disability under human rights legislation, though nicotine and tobacco aren’t usually mentioned specifically. Does that mean employers have to accommodate employees who smoke?

Recently, the owner of a jet boat tour company with outlets in Montreal, Ottawa and Niagara Falls, Ont., made the news when it was revealed he didn’t hire smokers and hasn’t done so for 30 years. He said he initially started doing it to avoid workers who took too many smoke breaks but now sees it as a personal war against the chronic disease and death the habit causes.

No one has challenged the policy in a legal forum as of yet, and in fact a recent hire of the company told the National Post he quit smoking rather than lose the job when he was told of the policy — and he’s glad he quit. However, there could be trouble if someone did challenge it — while the employer may have some right to dictate what employees do while at work, their activities on their own time are generally off-limits. In addition, if a smoker claimed an addiction, there could be a risk of discrimination under human rights legislation.

As far as employees smoking at or around the workplace, the employer also has to consider the health of other employees and the effects of second-hand smoke. This makes a ban on smoking at work likely to stand up, though accommodation could still make things not as simple. If a worker is addicted to smoking, the employer might have to provide an area to smoke or extra time so the employer can go somewhere she can light up – but the employee would also have to be prepared to prove the addiction with medical information supporting the claim.

There’s also the issue of employee health costs. If an employer pays for part of or all of certain employee health-care benefits, smoking-related health problems can add to the cost. Banning employees from smoking could be a way of reducing those costs.

So far, there hasn’t been much case law regarding smoking as an addiction requiring accommodation. In 2000, a B.C. arbitrator found an employer’s no-smoking policy discriminated against heavy smokers and nicotine addiction was found to be a disability under human rights legislation: see Cominco Co. and USWA, Local 9705, Re, 2000 CarswellBC 4681 (B.C. Arb.).

However, since that case, no-smoking legislation has been on the rise and people can’t smoke in most public places. Smoking may be on the decline, but smoking proponents can be fierce in standing up for their right to smoke — as can non-smoking proponents for the opposing view. Do employers have the right to ban their employers from smoking, at least during work hours? Or should smoking be treated as an addiction similar to other drugs and alcohol, requiring accommodation and protection from discrimination?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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