Firing an employee for being a smoker

At least one U.S. company has said it will terminate the employment of workers who smoke — what would happen if a Canadian employer tried a similar tactic?

Stuart Rudner
Can an employer refuse to hire someone because they smoke? What if that person already works for the company — can it adopt a “no smokers” policy and terminate him if he continues to be a smoker?

Some U.S. companies have recently taken the drastic step of refusing to employ people who smoke cigarettes, even if they only smoke on their own time. In most of these cases, the policy has taken the form of a refusal to hire anyone that is a smoker. In at least one case, however, the company has gone so far as to adopt a policy of terminating smokers who do not quit by a specified date.

The motive behind these decisions is simple: money. The evidence suggests smokers are less productive, more prone to absenteeism and more costly to insure. Employing only non-smokers will reduce health-care costs, improve morale and increase productivity.

Employment laws in most American states are quite different from those in Canada. They are typically more employer-friendly. In most cases it will be easier to end, or avoid, an employment relationship in the U.S. than it would be in Canada. However, the “no smokers” policies referred to above raise an interesting question: Could an employer adopt such a policy here?

In Canada, there is human rights legislation in every jurisdiction that prohibits discrimination in the context of employment. In order to trigger the legislation, however, the discrimination in question must relate to a protected ground, such as a disability, ethnic or religious background, or race. It goes without saying that a refusal to hire women would normally constitute discrimination against a protected group. The question is whether a refusal to hire smokers would as well.

Smokers might qualify as a protected group if smoking, or the addiction to cigarettes, is considered at law to be a disability. This issue has been considered in a few Canadian cases, although most of them have considered the issue in the context of the Charter of Human Rights and Freedoms, which is slightly different than the human rights legislation.

Perhaps the most recent consideration was in R. v. Ample Annie’s Itty Bitty Roadhouse, in which the court found that smoking is not a disability under the charter. The context of that case was an effort by restaurant owners to have a smoking bylaw deemed to be invalid. In the course of considering the issues, the court reviewed previous decisions, including:

McNeill v. Ontario (Ministry of Solicitor General & Correctional Services): In this case, which was considered under the charter, the court found that smoking and addiction to cigarettes is not a disability since it does not interfere with a person’s ability to function and since smokers were not a “discrete and insular minority” or a group that had suffered historical disadvantages.

Cominco Ltd. v. The United Steelworkers of America, Local 9705: This case considered a proposed workplace smoking policy. The arbitrator found that nicotine is as addictive as cocaine or heroin, and ultimately held that this addiction is a disability. The arbitrator explicitly distinguished the McNeill decision based upon the more extensive medical evidence he had before him and the fact that he was working in the context of the Human Rights Code.

Given that the Cominco case was decided under the Human Rights Code, and related directly to the employment context, it is arguably the most relevant precedent to the issue raised in this article. In that case, the court found that smoking was a protected ground, and that the policy was therefore discriminatory. Once a finding of discrimination has been made, a court must determine whether the policy in question is a bona fide occupational requirement. The test is a three part one in which the company must show that:

•the policy was adopted for a purpose rationally connected to the performance of the job;

•the policy was adopted in an honest and good-faith belief that it is necessary to the fulfillment of the legitimate work-related purpose; and

•the policy is reasonably necessary to the accomplishment of the purpose identified in the first part.

In the third step, the employer must show that it has met its duty to accommodate employees to the point of undue hardship.

The arbitrator in Cominco indicated that the first two steps of the test would likely be met. The third issue, which was not addressed in the arbitrator’s decision, was how the duty to accommodate would apply. The case law is clear that the duty to accommodate does not require the employer to allow employees to smoke on company property. However, it could require actions such as the provision of counselling or the creation of an indoor smoking area.

The Cominco case involved a no smoking policy. Such policies are enacted in order to restrict behaviour while at work. Conversely, “no smokers” policies, such as those that have been adopted in the U.S., are directed at the people in question, categorizing them by their off-work behaviour. An employee is not penalized for smoking on company property, the employee is penalized for being a smoker.

In such a case, the key question might be how an employer could show it met its duty to accommodate. Would the duty require that employers give existing employees an opportunity to quit smoking? Or would it go even further and require that an employer seeking to ban smokers help them to quit? Would accommodation on that scale even be sufficient to “save” such a policy?

At the end of the day, any efforts by Canadian companies to adopt a “no smokers” policy would be challenged and the company in question would be hard pressed to satisfy a court there was no violation of the applicable human rights legislation. However, if the effect on the bottom line would be substantial enough, it might be worth taking a shot.

For more information see:

R. v. Ample Annie's Itty Bitty Roadhouse, 2001 CarswellOnt 6078 (Ont. C.J.).

McNeill v. Ontario (Ministry of Solicitor General & Correctional Services), 1998 CarswellOnt 2309 (Ont. Gen. Div.).

Stuart Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or srudner@millerthomson.ca.



What's happening in the U.S.?
A Michigan health-care company fired four employees after they refused to take a test to determine whether they smoke cigarettes.

According to the Associated Press, Weyco Inc., a benefits administrator, adopted a policy at the beginning of this year that it would fire employees who smoked even if the smoking was done after business hours or at home.

“I don’t want to pay for the results of smoking,” said company founder Howard Weyers, who said the policy was designed to protect the company from increased health-care costs.

Gary Climes, the company’s chief financial officer, said about 20 of the company’s 200 employees were smokers before the policy was announced. About 14 quit before the policy went into effect with the help of the company.

Bill Fallon, a labour law attorney, told a Michigan television station there isn’t much smokers can do about it because there is nothing under Michigan law, or federal law, that protects people who smoke.

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