No-smoking policies not just blowing smoke

How serious should the discipline be when employees are caught smoking in the workplace?

By Jeffrey R. Smith

Smoking in public is pretty much against the law in most places in Canada and most employers have followed suit by banning it in their workplaces. Some may set aside specific areas outside for employees to take smoke breaks, but smoking in the workplace can result in discipline for employees. But how serious should the discipline be? How should employers handle employees caught with a cigarette at work?

A primary reason for no-smoking policies in a workplace is health and safety, similar to public smoking bans. Employers don’t want their workplaces full of smoke. Having difficulty breathing or smelling smoke could seriously affect other employees’ ability to work and ultimately their health. So an employee caught smoking on the premises is not just violating policy, he could be negatively affecting the health of co-workers. So smoking at work could be more than just simple misconduct deserving a slap on the wrist.

Last year, a Mississauga, Ont., weld shop employee was caught smoking in the shop. It was the fourth time in five months since the employer implemented a no-smoking policy the employee had been caught. The employee denied it but a manager had seen a glowing ember and the cigarette in the employee’s hand. The employer fired him because it felt it was likely he would continue to smoke at work. An arbitrator supported the employer’s system of progressive discipline for each violation but substituted a five-month suspension with the stipulation one more violation would get him fired.

Three years ago, there was a case where another industrial employer caught an employee smoking beside his machine in its factory. The employer had a no-smoking policy in the factory for health and safety reasons and the employee was given an indefinite suspension which led to a termination. An arbitrator ultimately determined a four-month suspension was appropriate.

So even though each employee in the above cases was reinstated after termination, they each received a lengthy suspension, showing that smoking in the workplace was taken seriously. Is the act of smoking at work serious enough to warrant a lengthy suspension or more? If the smoking presents a health risk to other workers, is the employer exposing itself to liability if it doesn’t act swiftly and decisively?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit He can be reached at [email protected].

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