Simon Heath, BA, MIR, LLB, Heath Law
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
The Ontario Occupational Health and Safety Act violence and harassment prevention provisions (Bill 168) require an employer to take all reasonable precautions in the circumstances for the protection of all employees if a domestic violence situation is likely to expose a worker to physical injury in the workplace and the employer becomes aware or ought reasonably to be aware of the situation.
But what does that imply? The law states the requirement but provides little guidance on what employers need to do to prevent domestic violence from spilling into the workplace. In addition, many employers are not comfortable addressing a situation of such a personal nature. It is not an easy task to complete and might never be.
Marie-Yosie Saint-Cyr, LL.B. Managing Editor
The Ontario Occupational Health and safety Act violence and harassment prevention provisions (Bill 168) require employers to provide information, including personal information, about a person with a history of violent behaviour if:
Marie-Yosie Saint-Cyr, LL.B. Managing Editor
Accommodating employees with disabilities to the point of undue hardship under human rights legislation can be a complicated task. It’s important to make sure the accommodation process goes smoothly and the employee can focus on working as efficiently as possible, but employers may not be sure about what kinds of questions to ask disabled employees in order to meet their needs.
Christina Catenacci, BA, LLB, LLM, PhD