IS SMOKING A DISABILITY?

Recently, several major newspapers have released articles questioning whether an employer can refuse to hire an employee because he or she is a smoker.

This raises an interesting question about what health issues are protected by human rights laws in Ontario and Canada.

Human rights and disability

The Ontario Human Rights Code (“Code”), protects employees from discrimination in employment on the basis of disability. This includes the pre-employment process of interviewing and hiring.  Employers have an obligation to accommodate employees with disabilities to the point of undue hardship as long as the employee can complete the essential duties of the position.

The Code provides a lengthy description on the meaning of disability but does not list specific disabilities covered by the legislation.

The types of illnesses that the Human Rights Tribunal of Ontario (“Tribunal”) has found to be disabilities under the Code include, for example, cancer and diabetes, as well as mental illness such as depression and anxiety. The Tribunal has also found addiction to marijuana and alcoholism to be disabilities.

But what about smoking?

In this 1998 case, an Ontario court, decided that nicotine addiction was not a disability covered by the Canadian Charter of Rights and Freedoms (“Charter”) because it was temporary and could be voluntarily overcome. The court further held that smoking did not “interfere with a person’s effective physical, social and psychological functioning” so it was different from alcohol addiction. The Charter is similar to the Code because it protects Canadians from discrimination by the state on the basis of mental or physical disability.

In 2000, a British Columbia arbitrator decided differently in Cominco Ltd. V. U.S.W.A.. The arbitrator determined that a policy preventing employees from smoking on company property could discriminate against heavy smokers. These employees may suffer from withdrawal symptoms if they cannot smoke for several hours and may find it difficult to quit smoking. The arbitrator stated that employers may have a duty to accommodate employees who smoke.

Another BC Human Rights Tribunal decision in 2009, found that an applicant who claimed she was not hired because she was a smoker could proceed with her Application.  This matter settled before a hearing on the merits took place.

What’s next and what should employees do?

We anticipate that in the future the Human Rights Tribunal of Ontario may find nicotine addiction to be a disability in certain circumstances.

The DSM is a diagnostic manual which assists doctors in diagnosing mental illness. This manual is updated periodically adding new disorders. The DSM-IV-TR published in 2000 included Nicotine Dependence and Withdrawal. The most recent version, the DSM-V, was published in 2013 and recognized an expanded Tabaco Use Disorder. The Tribunal has used the DSM in multiple decisions to guide it in determining whether something is a “disability” under the Code.

An employee who is a smoker should contact a lawyer if he or she:

1. is rejected for a job for being a smoker;
2. is disciplined for smoking;
3. is denied advancement opportunities for being a smoker; and
4. or is terminated because of smoking or being a smoker.

If you have experienced discrimination at work because of a disability, please contact us at  [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).