Smokers Have a Disability

Heavily addicted smokers have a disability and must be accommodated, arbitrator rules.

In 1998 Cominco Ltd. imposed a ban on smoking at its lead and zinc mine in Trail, British Columbia.   The ban prohibited possession of tobacco in any form, anywhere on the 450-acre site. All employees, including approximately 1900 unionized workers were affected.   A grievance was filed after the Company took disciplinary action against employees who did not comply with the non-smoking policy.

Since 1996, the union and the company had agreed to prohibit smoking in both the lead operation (inside and outside) and the fertilizer plant, because of know safety risks. Smokers could ingest more lead with the frequent contact between their hands and mouths, and fertilizers are highly combustible.   But in February 1998 the ban extended to all areas of the company´s operation.

The counsel for the union, the United Steelworkers of America, Locals 9705 and 480, argued that nicotine addiction and the withdrawal symptoms that accompany cessation of smoking, constitute a disability as described in the British Columbia Human Rights Code.   The union put forward the suggestion that the company could accommodate smokers by allowing them to use outside areas where their smoke would not affect other employees.

The counsel for Cominco argued that the no smoking rule applied to all employees and was therefore not discriminatory. He also argued that to accommodate nicotine addiction does not require an employer to let employees smoke, just as accommodating alcoholism does not mean letting an employee drink.   The company considers accommodation to be the smoking cessation courses, nicotine replacement therapy, counseling and ongoing employee assistance programs that it has offered all employees free of charge.

Arbitrator Dalton Larson, has ruled that nicotine addiction is a disability just like alcoholism or drug addiction and that Cominco´s policy discriminates against heavily addicted smokers. Under section 13(1)(b) of British Columbia´s Human Rights Code, discrimination in employment on the basis of physical or mental disability is prohibited.  

Larson agreed that Cominco´s smoking policy was not discriminatory, in that it applied to all employees, but that it did have an adverse affect on heavily addicted employees who cannot work a whole shift without withdrawal symptoms that impair their performance.   Larson considered the company´s progressive discipline policy for offenders too severe and inappropriate. If caught smoking, after their fifth offence, they could be dismissed.

In his Decision, Larson cited the Supreme Court of Canada in the Meiorin case.   British Columbia firefighter Tammy Meiorin failed a fitness test when she could not complete a 2.5-kilometer run in the required seven minutes. Tammy Meiorin was reinstated after the Supreme Court ruled that the aerobics standard set by the government discriminated against women and didn´t properly measure a person´s ability to fight forest fires.   The aerobics test did not succeed as a "bona fide occupational requirement"(BFOR) and could no longer be used by the employer.

In his concluding statements Larson says that the ban is clearly discriminatory. The issue is whether the smoking cessation program, nicotine replacement therapy and on-going counseling have satisfied the requirements of accommodation.   Larson returns these issues to the parties to resolve, as they had made their cases without the benefit of the Meiorin decision. Before the Meiorin case the Supreme Court made discrimination decisions by dividing them into two categories, direct and adverse affect discrimination. Direct discrimination such as a workplace rule that is offensive or against the law would have been struck down unless it could be a proven BFOR.   But in a case of "adverse affect discrimination" the rule had to be acceptable and even beneficial to the company.   In these cases the rule was kept and an attempt was made to "accommodate" the affected employee group, but without "undue hardship to the enterprise".   The Meiorin case was a landmark decision because the distinction between direct and adverse discrimination is no longer made. A workplace rule that is discriminatory and is not a "bona fide occupational requirement" will be struck down.