In a blog last year, we addressed the issue of whether smoking was a disability and the relationship between smoking and employee human rights. To date, we have not yet seen a human rights decision specifically address smoking as a disability. However, a recent arbitration decision under the Ontario Labour Relations Act considers the rights of employees who are smokers.

In United Steelworkers Local 7175 v Veyance Technoligies Canada Inc, a labour arbitrator reviewed an employer’s policy which prohibited employees from smoking anywhere on company property and prohibited employees from smoking at any time during the day, even if it was off company property.  The employer argued that smoking affected employee health and safety and reduced company productivity and work quality.

The arbitrator agreed that the employer had the right to prohibit smoking on its property because it was harmful to employees and the employer.  However, the arbitrator found that the employer could not prohibit employees from smoking off property during their breaks, as long as they returned to work on time.

From a human rights perspective, the decision is interesting because it confirms that employers can prohibit employees from smoking on company property – presumably even if this is an employee disability. The company in this case did state that it would accommodate any employee who had a “substantiated addiction to smoking by placing them in a program designed to assist them in stopping to smoke.”  This decision lends support to our analysis in the 2014 blog above: that smoking is a disability and that employers are required to accommodate employees who smoke. However, this decision suggests that accommodation may not involve allowing the employees to smoke on company property.

If you are an employee, who is a smoker, and you

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

you should contact a human rights lawyer to discuss your legal rights.

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).