Smoking tobacco is widely known to increase health risks and reduce workplace productivity, with many smokers requiring numerous breaks throughout the day. This can have an impact on a company’s bottom line when it comes to health insurance premiums, absences and efficiency. However, are these reasons sufficient to justify a policy of refusing to hire tobacco users?
U-Haul, an international company with tens of thousands of employees in Canada and America recently introduced a hiring policy that prohibits the hiring of nicotine users in the 21 American states that allow tobacco use to inform hiring decisions. This policy requires candidates for employment to answer questions about smoking habits and also to submit to nicotine testing as part of the interview process.
The policy may be well-intended. The company spokesperson stated that the objectives were to develop a healthy workplace and to avoid nicotine products which are addictive and create serious health risks. As laudable as these goals may be, there are serious issues as to whether the policy would be considered street legal in Ontario.
Human Rights Issues
The primary issue that an employer would encounter if considering a similar policy in Ontario is that it may violate a potential employee’s human rights. Ontario law refuses to allow employers to treat persons adversely due to a disability. Addictive behaviours are well defined to be included within this definition. Typically, this ground is generally applied to addictive habits such as recreational drug use or alcohol, but the category is wide open. It has even been suggested that sex addiction may qualify and with proper medical evidence, it may well.
It is quite likely that addiction to nicotine would also meet this standard, although no human rights cases to date have decided this issue. Some obiter dicta exists that touches on tobacco addiction as a covered human rights ground, however, it is not raised in an employment context. In any regard, the judicial commentary in the case linked to appeared to support the proposition that tobacco addiction is a human rights issue, but it was not decided on this basis. It is likely a safe presumption that nicotine addiction would meet this test of a disability under human rights law.
The Addict vs. The Casual User
A candidate for employment who states that they are indeed addicted to nicotine, and is subsequently refused employment because of this fact will clearly have a good start to a human rights case. There may be other defences available to the employer based on other aspects of unsuitability, but the basic “prima facie” case will be made out.
The non-addicted user presents a different set of issues. One might expect that such a person would be required to affirm this policy as a term of employment. However, human rights law also recognizes that the perception of a disability can lend itself to a claim for a violation even if the underlying disability does not exist.
It would appear that the purpose of U-Haul’s new policy is to avoid the hiring of persons who are addicted, seem to be addicted, or may even be prone to such addiction. In Ontario, this, in itself, would very likely lead to a human rights violation.
Guideline for Both Sides
It is a safe bet to make that such a policy would encounter real issues with Ontario’s human rights laws. Once a case is made out for violation, an employer must show accommodation of disability to the point of undue hardship which would not be shown here. The better course may be to offer subsidized addiction treatment to employees impacted by tobacco addiction and to avoid hiring decisions premised on this basis.
Employees who have been wrongfully dismissed or refused employment for a cause protected by Ontario human rights law should review their situation with an experienced employment lawyer. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.