Oct 14

Discriminating against smokers

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Smoking breaks at work cost British businesses £8.4bn a year, study finds

Dependency on Smoking A Protected Ground under the Ontario Human Rights Code?

When you think of a substance dependency as a disability, you typically think of alcoholism or mood altering drugs. However, the idea that a dependency on cigarettes may fit within a similar category as alcoholism is being approached by human rights tribunals.

Section 5 (1) of the Ontario Human Rights Code, R.S.O. 1990, c.19 (the “Code”) protects employees from differential treatment on the basis of disability. But does a substance addiction fall within this scope and does smoking fit within the definition of substance? As cited in Entrop v. Imperial Oil Ltd. [1996] O.H.R.B.I.D. No. 30 at paragraph 18, the definition of substance abuse is:

“Where an individual’s use of drugs or alcohol has reached the stage that it constitutes severe substance abuse, addiction or dependency, e.g. maladaptive patterns of substance use leading to significant impairment or distress, including:
(a) recurrent substance abuse resulting in a failure to fulfil major obligations at work
(b) recurrent substance abuse in situations which are physically hazardous
(c)continued substance abuse despite persistent social, legal or interpersonal problems caused or aggravated by the effects of the substance.”

Case Law

In the arbitration case of Cominco Ltd. v. United Steelworkers of America, Local 9705 [2000] B.C.C.A.A.A. No. 62, the Complainant’s employer had developed a workplace policy which prohibited smoking on the work premises. The Arbitrator presiding found that this policy constituted discrimination within the meaning of the Code as employees who were regular smokers- meaning 25 or more cigarettes per day- would have a negative and disabling reaction to not being able to smoke.

The Arbitrator drew a correlation between an addiction to smoking and alcoholism, stating at paragraphs 232-233 that:
“I should also like to comment on the argument by the Union that the only appropriate accommodation would be to permit employees to smoke in an outside area. Mr. Grist replied that no one would suggest that a suitable accommodation of an alcoholic employee would be to permit the employee to drink. The reply of Mr. Rowlinson was then that smoking should not be compared to other forms of addiction because it is a legal activity and it does not impair function.

(233)The fact is, however, that drinking alcohol is no more an illegal activity, if done in proper circumstances than is smoking. Undertaking certain activities while impaired by alcohol is illegal but the act of drinking is not illegal. By contrast, taking narcotic drugs is an illegal activity per se. Nor do I accept that smoking does not impair function. That is only true in the initial stages of addiction. In its more chronic phases, smokers suffer significantly higher rates of absenteeism, illness and disease no less than a person addicted to alcohol.”

As the above complaint confirms, the degree of addiction is a major factor in the classification of cigarette dependency as a disability. Following this decision, employers attempting to implement a restrictive policy such as that in the complaint above may be subject to a legal claim for violations of the Code.

Advice for Employers

As an employer, maintaining policies which are modern and in accordance with applicable human rights legislation is crucial. If you are concerned regarding a policy’s potential to violate such legislation, contact Monkhouse Law for a free consultation.
Advice for Employees

If you believe you have been subjected to differential treatment, suspended or terminated based on a dependency to cigarettes, you may have a legal remedy available. Contact Monkhouse Law today for a free consultation.