Canadian employer not only workplace hiring strictly non-smokers

[AP Photo/Gene J. Puskar]

A tour company owner based in Montreal is vocal about his refusal to hire smokers, but is his position legal?

Jack Kowalski, owner of three whitewater boating companies in two provinces, told the National Post that he hasn’t hired a smoker in 30 years because he refuses to — whether they smoke while working or restrict it only to their off hours.

Kowalski said he’s proud of his position, which was initially spurred by a desire to reduce employee smoking breaks but has morphed over the years into a one-man public-health crusade. But under current Canadian laws, he wouldn’t have a legal leg to stand on if someone challenged his policy in court.

“In order to have that restriction, there has to be a bona fide work requirement,” law expert Gilles LaVasseur of the University of Ottawa tells Yahoo Canada News. For example, if the employee’s choice to smoke somehow affects the well being of the work environment, or the business’ relationships with customers and clients, an employer may be able to restrict employees from smoking.

“An example of that would be a waiter who would be smoking [while working] and would be disturbing clients,” LaVasseur says.

Most workplaces in Canada already fall under significant provincial and municipal restrictions on smoking, however, that would prevent issues like this from coming up at all.

But in most cases, an employee simply doesn’t have a right to restrict an employee from engaging in a legal activity like smoking if it’s not impacting the health or functioning of the workplace, regardless of the employer’s feelings about the habit.

“It’s just a style of life,” LaVasseur says. “People are entitled to make their choices. It’s like eating cereal versus eating muffins for breakfast.”

Other employers like Kowalski

Kowalski isn’t the only employer to attempt to restrict employees from smoking, on or off the clock. In 2014 the Toronto Star found job ads from the Canadian Cancer Society and Momentous Corp. that said non-smoking in applicants was preferred or required. And a search done by Yahoo Canada News found four ads from the Reynolds and Reynolds Company in New Brunswick that specified the workplace is a “non-smoking environment” but made no mention of restrictions after work hours.

Because its mission advocates against smoking, among other public-health concerns, the Canadian Cancer Society may be able to argue that hiring non-smokers is essential to its mission, LaVasseur says.

“You’re promoting a certain way of life. That’s your corporate image,” he says of the Canadian Cancer Society. “Smoking would be contradicting that image.” The society’s ability to legally restrict employees from smoking has no relation to its status as a registered charity, he says, but rather is tied to the work itself and the ways that an employee’s choice to smoke may detract from that.

Smoking restrictions have been tested in some jurisdictions. For example, in 2000 a British Columbia labour arbitration decision between Cominco Resources Ltd. and United Steelworkers found that the mining company’s ban on smoking during shifts constituted discrimination on the basis of disability because smokers would experience withdrawal symptoms.

However, the arbitrator also said that while an employer does have to accommodate a smoker up to the point where it becomes harmful, a smoker doesn’t have the right to smoke under B.C.’s human rights code.

Federal human rights codes prohibit employment discrimination based on a disability. And it’s no secret that cigarettes are habit forming, which means that they could conceivably fall under the disability law as an addiction. However, cigarette addiction isn’t listed specifically as a disability in any existing laws and no court decision has yet ruled on smoking as a specific disability.

However, employers may be able to make a case for smokers costing their companies more money. Employees who smoke cost a company about $4,200 more a year than non-smokers, according to a 2013 Conference Board of Canada report. That cost comes largely from lost productivity due to unsanctioned smoke breaks, though about 10 per cent was related to absenteeism.

Employers could require employees who smoke to offset some of those costs if they can tie them to smoking, LaVasseur says, for example, requiring them to pay higher premiums for health insurance. But those restrictions can’t extend to ending the employment itself.

“It’s very very limited to those possibilities,” LaVasseur says. “There is that possibility, but it has to be justifiable.”