No smoking in personal vehicles on company property reasonable: Arbitrator

Company introduced new policy prohibiting smoking everywhere on its premises with goal of improving employee health and wellness

An arbitrator has upheld an Alberta company’s policy prohibiting smoking anywhere on its property, including inside employees’ vehicles in the company parking lot.

Tracker Logistics operated a warehouse in Leduc, Alta., providing logistic services and supply chain management. For some time, Tracker maintained a smoking policy at the warehouse that allowed smoking outside in designated smoking areas, no closer than five metres to any entrance. Smoking was only allowed during scheduled breaks — no extra “smoke breaks” were permitted — and a failure to comply could result in “discipline up to and including termination of employment.”

The smoking policy was the result of Tracker’s parent company, Excel, deciding to unify its policies across North America. Excel had a Canadian health and wellness strategy that aimed “to create an environment that encourages personal responsibility and neutral respect and improves the health, safety and productivity of our workforce.” Part of this strategy involved increasing engagement in health management programs to achieve a healthier, more productive workforce.

In 2014, Excel and Tracker developed a new smoking policy to come into effect on Jan. 1, 2015. The new policy prohibited tobacco use “in any location designated as a Tracker workplace.” This included all inside and outside areas of the facility, green spaces, sidewalks, parking lots and garages on company property — even those owned by Tracker but leased by a third party. Personal vehicles on company property were not exempt from the policy and the policy indicated, as before, that violations would result in disciplinary action.

The impetus for the new policy was the goal to eliminate tobacco use by employees and associates in order to improve the health of everyone at Tracker. The company believed it had a responsibility to “improve and protect our associates’ health” and was committed to its wellness strategy. In addition, many of its customers had already gone to completely smoke-free workplaces and it didn’t want customers having to encounter smoke at its own location or have employees looking for a place to smoke at customers’ locations.

The parent company, Excel, was also analyzing health care costs at its U.S. locations, in which it discovered tobacco users costs more per year than employees who didn’t use it. In addition, tobacco users had a substantially higher risk than non-tobacco users for having certain medical conditions linked to tobacco usage. While Canada had a different healthcare environment with less costs shouldered by the employer, the company had a Conference Board of Canada study that found significant additional costs for employers who employed smokers from reduced productivity due to smoke breaks and increased absenteeism.

Tracker introduced the new policy in labour-management meetings in March 2014, after Excel had implemented it in non-unionized corporate offices in 2012. The plan was to give employees at least six months notice of the changes with ongoing promotion of its “Quit for Life” smoking resource, which the company offered free of charge to employees and their spouses and adult dependants who wanted to quit smoking. The company issued talking points to managers to help them get the word out on the new policy and make it clear no smoking was allowed anywhere on company property, including inside vehicles.

Tracker continued the rollout of the policy with meetings throughout 2014, including monthly meetings with the union and town hall meetings with employees where the “Quit for Life” program was promoted.

The company provided the union with a copy of the policy in June 2014 and re-sent a final, formal copy on Oct. 8. Over the last few months of 2014, Tracker continued the rollout with notices, signs and newsletters. 

No-smoking policy went too far: Union

On Oct. 29, 2014, the union filed a grievance, arguing that the new policy was “unreasonable, unclear, and breaches the privacy rights of the membership of (the union) at Tracker Logistics.” The union also said the policy went much farther than existing provincial legislation regulating smoking and including the inside of personal vehicles on company premises raised questions about possible searches of those vehicles. Personal vehicles were beyond the scope of the Alberta Tobacco Reduction Act and therefore it was unreasonable for Tracker to have such limitations in its own policy, said the union.

The union also pointed out that employees smoking inside their own vehicles didn’t expose others to the smoke, cause a fire risk, or contaminate the company’s products, leaving no link to the blanket ban and Tracker’s legitimate business interests.

The company maintained that the no-smoking policy was within its management rights and a collective agreement provision stipulating its duties included instituting and maintaining “all precautions to provide every worker a safe and healthy workplace” — which its no-smoking policy and health and wellness strategy strove to do. In addition, Tracker argued that it was under no obligation to simply follow the minimum standards of legislation for its workplace.

The arbitrator referred to a 2007 Ontario arbitration decision, Kingston Independent Nylon Workers Union v. Invista Canada, in which the arbitrator found that the employer would have to pay “a significant sum” if its employees continued to smoke, and a reduction or end to smoking would save the employer that amount — linking the cessation of smoking to the employer’s economic interest. The arbitrator in Invista also found that it was the right of a property owner to control what goes on in its own backyard, regardless of whether legislation allowed it.

“Neither sex or soccer are ‘illegal;’ but it does not follow that either ‘recreational activity’ can be pursued on the employer’s property, or during paid work breaks,” said the arbitrator in Invista.

The arbitrator also agreed with the Invista decision that supported the employer’s obligation to discourage hazardous behaviour on its premises — something reinforced in Tracker’s collective agreement provision mentioned above — regardless of whether employees were willing to accept the risk or not. According to the union, the hazardous behaviour of smoking on Tracker’s property was different, said the arbitrator.

“This alleged ‘right’ to injure yourself on the employer’s property is, to say the least, an odd assertion from a health and safety perspective — particularly where there is no doubt that the employer normally has an obligation to search out and minimize risks from toxic substances and carcinogens in the work environment,” the arbitrator said. “Moreover, the employer has that obligation, because it is the employer who controls the work environment; and the union would be the first to complain if there were a known carcinogen in the workplace (a substance as demonstrably dangerous as tobacco smoke), and the employer did not try to eliminate it or reduce the employee’s exposure.”

The arbitrator found that it would be inconsistent for an employer to introduce a policy designed to encourage employees to quit smoking but allow them to smoke in their cars while on company property, when the latter would negatively affect the broader goal of improving employee health and wellness.

The arbitrator determined Tracker’s no-smoking policy that included a prohibition on smoking in personal vehicles while on its property was reasonable and within the company’s management rights. The union’s grievance was dismissed.

For more information see:

• Tracker Logistics Inc. and Unifor Local 4050, 2016 CarswellAlta 913 (Alta. Arb.).

Kingston Independent Nylon Workers Union v. Invista Canada, 2007 CarswellOnt 9156 (Ont. Arb.).

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