Smokers need not apply

Some firms prefer not to hire smokers but the legality of doing so isn’t settled
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 05/06/2013

The job ads state it clearly, in capital letters: “Non-smokers only, please.”

Whether it’s for an Arabic customer service representative or an intermediate net developer, candidates interested in jobs at Ottawa-based Momentous and its affiliates are asked not to smoke — anytime.

Since adopting the policy in 2000, the company has lowered its health-care benefit costs and employees are happier, according to Rob Hall, president of Momentous, an Internet ventures company devoted to initiatives such as web applications, software development and consumer marketing.

But Hall would eliminate the non-smoking requirement if the Supreme Court of Canada ever declared smoking as someone’s right, he said in a National Post article on April 5.

“A lot of people think it’s their right to work here and it’s not. People will scream the ‘discrimination’ word. Well, of course it’s discrimination — it’s just not illegal discrimination and there’s a huge distinction between those two things,” said Hall, adding he is OK with hiring someone who is willing to quit smoking.

Such a requirement can be found, sparingly, in other employer ads, such as that for a full-time server/barista in North York, Ont., or a building operator/engineer in Calgary. The Canadian Cancer Society also has such a policy.

“Many health organizations, including the World Health Organization and the American Cancer Society, have taken a position to hire only non-smokers,” said the society. “With consideration to the links between smoking and cancer, as health agencies, we want to set a good example and be consistent with our mission which… is the eradication of cancer and the enhancement of the quality of life of people living with cancer.”

But, generally, is it a good idea for an employer to have such a restriction?

For the most part, employers know having smokers on staff can mean more lost time, indirect health-care costs, longer breaks and less productivity, said Krista McMullin, president of Smoke-Free Nova Scotia in Truro, N.S. But an employer can show it cares about employees by providing support — as Momentous has done with on-site doctors and nurses helping people quit.

“If an employer does provide the time to go for a smoking-cessation program on company time, whether it’s on-site or wherever, it just says to them that, ‘OK, they’re not just having this non-smoking policy and doing nothing, they’re doing this, and the reason why is the health part,’” she said.

A number of studies have linked smoking by employees to lower levels of productivity, higher absenteeism and more sick days, according to David Doorey, an associate professor at the School of Human Resource Management at York University in Toronto. Surveys also show most people support smoking bans at work, he said.

But the controversial question is whether a no-smoking policy should reach beyond the workplace into the personal lives and choices of employees.

“Some workers may take offence to a policy that purports to tell employees how to live their lives when they are not at work,” said Doorey. “The risk to employers is that some otherwise good workers may be put off by policies perceived to be too far-reaching.”

The rules are different for unionized and non-unionized employees, he said. Almost certainly a smoking ban that applies to workers’ leisure time would violate an employer’s more restricted rule-making powers in most collective agreements. However, non-union employers have much greater discretion, he said.

“They can choose to employ only people whose favourite colour is blue, if they wish. There are a few limitations on this broad discretion, imposed by statutes.”

For example, human rights laws say employers can’t refuse to hire or fire employees because of a disability, so a smoker denied a job because of a no-smoking policy could argue she is disabled due to her nicotine addiction, said Doorey.

“There is some legal precedent finding that an addicted smoker is disabled in the same sense that we treat alcohol and drug addiction as disabilities that can affect behaviour and job performance. This is an unsettled legal issue in Canada. As a result, there’s still uncertainty about whether a no-smoking policy that reaches beyond the workplace is legal.”

In a human rights context, it has not been established whether or not nicotine addiction would be considered a disability, said Afroze Edwards, issues and media relations officer, communications and issues management, at the Ontario Human Rights Commission in Toronto.

“Obviously it would be an issue for people who are smokers and, therefore, don’t have access for employment with that particular company but… unless there is a claim made that would make a decision or at least give some direction in terms of whether or not people could file and say, ‘Because I smoke, I’m being denied this’… it’s not clear under the code that that would be protected under disability,” she said.

It’s not about the right to smoke but protecting someone who suffers from a disability as a result of an addiction and making the necessary accommodations, said Julie-Anne Cardinal, an associate lawyer at Heenan Blaikie in Toronto.

“Employers who think such policies are a good idea should know it is a live issue in law as to whether or not that kind of policy is appropriate and, at the end of the day, they should turn their minds… to what’s the goal, what does one really want to achieve?

“Is it really about not hiring smokers or are you generally interested in making your workforce healthier? And if that’s the case, then perhaps rather than generating hard-line policy, perhaps instigating special programs… like get-fit programs, a quit-smoking campaign or offering some form of assistance and support to employees who want to better their health which, in turn, lowers health-care costs and it’s better for everyone.”

There have been a couple of cases looking at the issue of smoking on company property, with one British Columbia arbitrator stating a “heavy” smoker could have a disability, while another in Ontario concluded a manufacturer of flammable products had health and safety reasons that justified a ban.

In 2009, there was a human rights case in B.C. involving a woman who claimed she was not hired by the City of Kelowna because she was a smoker, and this amounted to discrimination against her addiction. The British Columbia Human Rights Tribunal did not dismiss the complaint, stating “these facts, if proven, could constitute a contravention of the code.”

While it appears the case was settled, said Cardinal, it “certainly perks your ear up because it shows that there’s a tribunal out there that’s turned their mind to it and said, ‘You know, with the appropriate medical evidence, this would not necessarily be unlike alcohol or marijuana, or any other drug for that matter.’”

But there are also concerns about trivializing disabilities.

“There’s a sense of ‘Well, if you’re saying someone who smokes is disabled, that trivializes those people who are disabled… someone who has a more pronounced or obvious or clear disability, where there really is no question,’” she said.

The fact that a tribunal has not ruled on this may just be because the right case hasn’t come up, said Cardinal.

“I suspect if a tribunal got the right case in front of it, I don’t think they would have any qualms about determining it could be a disability — the possibility is quite strong.”

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