How far do smokers have to be accommodated?
Question: Is smoking considered an addiction disability that needs to be accommodated? Unlike other addictions, this one can affect others through secondhand smoke, so could it be considered undue hardship if an employer doesn’t have an area where it can allow smoking?
Answer: The grounds of discrimination enumerated in most human rights legislation include “drugs and alcohol.” However, addictions to tobacco, tobacco products and nicotine are not specifically mentioned in the legislation.
Grounds of discrimination can also be established through jurisprudence, with a similar effect as if they appeared in the statute. Surprisingly, there are few cases whether an addiction to tobacco is a new ground or falls under an existing ground.
British Columbia is the only province in which nicotine addiction has been found to be a disability constituting a ground for discrimination. In a 2000 decision, Cominco Co. and USWA, Local 9705, Re, nicotine addiction was found to be a disability within the meaning of the Human Rights Code, and heavily addicted smokers were found to be discriminated against by a no-smoking policy. Therefore, in British Columbia, employers have a duty to accommodate smokers who are addicted to nicotine.
It is difficult to predict the duty to accommodate in other provinces, especially because the legal analysis for discrimination has since changed in a way that might affect the outcome were the Cominco case to be decided today. Social policy on smoking has also shifted since 2000 (see the discussion of Smoke Free laws below).
The effect of secondhand smoke on non-smokers is certainly a factor to be considered in setting the location of a designated smoking area. The British Columbia Human Rights Tribunal in Borutski v. Crescent Housing Society held that the employer had a duty to accommodate certain tenants for whom exposure to secondhand smoke exacerbated existing medical conditions. A similar duty could apply in respect of employers.
The tribunal in Borutski ultimately held that the Housing Society discharged its obligations by implementing numerous measures, including moving the outdoor smoking area well beyond the buffer zone. Many requirements in this regard are now written into law in the form of “Smoke Free” legislation. Various provincial and federal acts passed over the last several years generally ban smoking in all indoor public spaces, including workplaces. The legislative bans on smoking are mostly consistent from one jurisdiction to another. Some of the provincial bans create smoke-free zones outside public spaces as well — within a certain radius from doors, windows and air intakes.
Employers should make themselves aware of the minute differences in the Smoke Free laws of the provinces or territories in which they operate. These requirements are ever-changing and may require periodic review of policies to remain compliant. In Nova Scotia, for example, the Smoke-free Places Act was recently amended to include electronic cigarettes in the definition of “smoke.”
For more information see:
• Cominco Co. and USWA, Local 9705, Re, 2000 CarswellBC 4681 (B.C. Arb.).
• Borutski v. Crescent Housing Society, 2014 CarswellBC 1545 (B.C. Human Rights Trib.).