Smokers need not apply: can Ontario employers refuse to hire nicotine users?

U-Haul’s new policy

As of February 1, 2020, U-Haul no longer hires nicotine users in 21 of the US states in which it operates. The company, which employs over 30,000 people across the US and Canada, announced this new policy late last year.

In the affected jurisdictions, U-Haul will now ask about nicotine use on its application forms, enquire about smoking habits during interviews and, where permitted, require that candidates submit to nicotine screening as part of the recruitment process. U-Haul’s Chief of Staff explained that the decision had been made to further its goal of fostering a healthy corporate culture as “nicotine products are addictive and pose a variety of serious health risks.”

Can Ontario employers refuse to hire smokers?

While it may be easy to understand U-Haul’s stated rationale for introducing this anti-tobacco policy, to adopt the same in Ontario would likely expose the company to liability.

Generally speaking, Ontario employers have discretion to hire (and fire) workers as they choose. There are, however, some important caveats to this general rule. One of which is that employers in Ontario cannot refuse to hire someone due to disability, age, sex, sexual orientation or gender identity (among other protected grounds).

It is settled law in Ontario that an addiction is a disability coming within the protective scope of the Human Rights Code. There is ample case law confirming that employers cannot discriminate against employees due to actual (or perceived) addictions to alcohol and/or illicit drugs. To date, however, as far as we are aware neither the Ontario courts nor the Human Rights Tribunal has stated conclusively that nicotine addiction constitutes a disability for the purposes of the Human Rights Code.

It is nonetheless likely that, in the right circumstances, a nicotine addiction will be considered a disability for human rights purposes. There is ample support for this conclusion: the Government of Canada, for example, readily acknowledges nicotine to be an addictive substance and “Tobacco Use Disorder” is a recognized medical diagnosis. Despite this risk, however, a number of Ontario-based employers do already openly refuse to hire smokers (as verified by a quick review of online job postings on sites such as Indeed). According to a National Post report, one such Ottawa-based employer went as far as to state on its website “We drink. We swear. We don’t f---ing smoke.”

Guidance for employers

While some employers may wish to discourage smoking in their ranks, and view the habit unfavourably, the reality is that tobacco products remain both legal and addictive.

As such, employers should avoid asking whether a prospective employee is a smoker in the course of the hiring process (whether on an application form or in the course of an interview). Otherwise, they may potentially be exposed to unwanted liability. Instead, employers should ensure their hiring questions remain rationally connected to assessing whether the interviewee has the core skills and requirements necessary to perform the role.

This article was originally published on February 14, 2020 on First Reference Talks.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.