Recently, an Ottawa-based tech company called Momentous Corp. has attracted national attention because it implemented a blanket policy against hiring smokers and advertises that it will hire non-smokers only. In order to reduce its health costs, Momentous prohibits the hiring of or allowing any smoking on its property during working hours. This trend has momentum in the United States where 29 states have permitted non-smoking hiring policies, which have taken hold in hospitals, municipalities and large private-sector companies. However, in Canada, no province has allowed for the complete prohibition against smoking.

A recent article from Benefits Canadastates that the percentage of smokers in Canada is down to 17 percent as of 2010 (from 25 percent in 1999), and employees who smoke cost on average $3,396 more per year than non-smokers in lost productivity, increased absenteeism, increased insurance costs and other related costs. Therefore, there is an economic justification to target smokers.

However, targeting smokers at the workplace by refusing to hire them or allow them to smoke during working hours raises a number of human rights concerns. Addiction to nicotine has been recognized as a disability under human rights legislation. Therefore, it would be improper for an employer to ask a prospective candidate about his or her smoking habits because this could be considered direct discrimination. Further, prohibiting existing employees from smoking or disentitling them to the same benefit coverage on the basis of their addiction could also be considered direct discrimination.

Targeting smokers also raises the issue of accommodating smokers to the point of undue hardship, which is a requirement under human rights legislation. To what extent should an employer have to accommodate an employee in quitting smoking before the employer can implement a policy that might result in an adverse employment consequence against that employee because he or she is a smoker?

While an employer’s desire to reduce or eliminate smoking at the workplace is a noble pursuit, employers are advised to be aware of human rights concerns and avoid adopting policies that may constitute discrimination on the basis of disability under human rights legislation. Employers are advised to offer programs that will provide assistance to their employees to become non-smokers.

Simon Heath LL.B, M.I.R.
HeathLaw