Society is becoming increasingly intolerant of smokers. In fact, legislators have restricted the places in which an individual may legally smoke. The Smoke-Free Ontario Act restricts smoking in any enclosed workplace, and places an onus on employers to enforce compliance with this restriction. Against this backdrop, employers are frequently asking whether they may impose restrictions on smokers, such as asking whether a candidate is a smoker and make hiring decisions on that basis, or whether pay or benefits entitlement may be adjusted for employees who are smokers due to the increased cost of health benefits.
Smoking as a Disability
Ontario’s Human Rights Code (“Code”) ensures that every person has equal rights and opportunities without discrimination in respect of employment, and provides for freedom from discrimination on several grounds, including disability. The question thus arises whether “smoking” constitutes a disability, and if so, whether an employer would be able to make hiring decisions or alter compensation on this basis. To date, the Human Rights Tribunal of Ontario (“Tribunal”), has yet to consider this issue.
However, one arbitration decision, Cominco Ltd. v. United Steel Workers of America, Local 9705,1 considered the issue of smoking as a disability. As such, this case provides a helpful indication of how smoking may be treated in Ontario.
In Cominco, the employer, a 450-acre smelter operation, adopted a comprehensive tobacco policy that prohibited the use of tobacco in any form anywhere on company property. The new policy meant that most workers would not be able to smoke for eight or twelve hours. The union argued that the policy was discriminatory on the basis of disability because smokers are addicted to nicotine and therefore need to smoke.
After reviewing extensive expert evidence, Arbitrator Larson concluded that there was a consensus amongst medical experts that heavy smokers have a disabling addiction to nicotine. The arbitrator accepted that heavy smokers, defined as those who smoke more than 25 cigarettes/day, would experience withdrawal symptoms such as depressed mood, irritability, anxiety, and difficulty in concentrating, among other things, if they were unable to smoke within a 2-2.5 hour period. These symptoms would persist for heavy smokers notwithstanding the use of nicotine replacement therapies. In addition, the evidence indicated that the majority of heavily addicted smokers were unable to quit smoking.
In the final analysis, Arbitrator Larson concluded that heavily addicted smokers suffer from a disability within the meaning of the B.C. Human Rights Code. The protection mandated by both B.C. and Ontario human rights legislation is accommodation of a disability to the point of undue hardship. Arbitrator Larson made clear that the protection afforded by the B.C. Code is not the “right to smoke.” Under human rights legislation, the act of smoking is essentially irrelevant to the equation and is neither sanctioned nor condemned. Rather, the law recognizes that people can become addicted to the point that they become physically and mentally disabled, and it is this state of disablement that is protected by human rights legislation, not the conduct that led to the addiction.
Effect of Finding that Smoking Constitutes a Disability under the Code
It is likely that the Tribunal would take an approach similar to Cominco in considering a decision of an employer to treat employees differently on the basis that they smoke. Section 23 of the Code essentially prohibits an employer from asking an employee a question that would reveal whether the employee is in a protected class under the Code. Consequently, it would not be possible, for example, to ask whether the employee was a smoker. A better approach would be to adopt a general practice of questioning prior employers about a job applicant’s attendance.
While a policy prohibiting smoking on a company’s property is acceptable, and smoking in enclosed workplaces is prohibited in Ontario, an employer’s duty to accommodate employees who smoke to the point of undue hardship would include the funding of an addiction management program to assist smokers in quitting, nicotine replacement therapy, and, in some cases, counseling.
Differential Treatment of Smokers
Given that the Tribunal would likely consider smoking to be a disability under the Code, a decision not to hire an employee on the basis that he or she is a smoker would constitute direct discrimination, as knowledge of an employee’s cigarette addiction gives rise to a duty to accommodate that addiction to the point of undue hardship. Similarly, a decision to decrease pay or benefits entitlements on the basis that they are more costly for employees that are smokers, would also likely be found to constitute direct discrimination.