Ontario law prohibits smoking at work and in enclosed public spaces, but there is no legislation that clearly says an employer can refuse to hire someone who chooses to smoke on his own time.

The only provincial or federal laws are human rights codes that prohibit employers from discriminating based on a disability. But the legislation does not identify smokers or people with any other medical conditions as disabled. And to date the Ontario Human Rights Tribunal has not ruled on whether smoking is a disability.

Last October, the Conference Board of Canada reported that on average a smoker costs a company about $4,200 a year more than non-smokers. They based this on $3,800 in lost productivity due to unsanctioned smoking breaks and another $400 in lost productivity due to absenteeism.

A recent internet search of job postings turned up five Canadian organizations with job ads that say “non-smokers only” or “non-smokers preferred.” They include the Canadian Cancer Society and Ottawa-based Momentous Corp, owner of the mail-order movie rental company Zip.ca.

“These companies have gone a step further than most employers,” says Arleen Huggins an employment lawyer with Toronto’s Koskie Minsky LLP. “They give preference to prospective employees who also do not smoke outside working hours.”

In an interview with CTV in March 2013, Momentous President Robert Hall said: “I’m not saying [job applicants] don’t have a choice to smoke, I’m just saying they don’t have the choice to work at Momentous if they do smoke.”

He also said that the company’s health benefit costs have been dramatically slashed and employee productivity has increased as a result of the policy.

In response to a request for an interview, a Momentous spokesperson said Hall is still very proud of the company’s non-smoking policy but he no longer gives interviews on this topic.

Huggins says companies refusing to hire smokers may want to operate under the radar to avoid provoking possible human rights complaints. She says different factors likely come into play for organizations like the Canadian Cancer Society.

“As a non-smoking advocacy group, they may be able to argue that hiring only non-smokers is a ‘bona fide occupational requirement.’”

There have been no definitive Ontario decisions, but Huggins says a British Columbia labour arbitration from 2000 between miner Cominco Ltd. and the United Steelworkers of America sheds some light on how the issue might be addressed by a court or tribunal in this province.

In 1998, Cominco adopted a non-smoking policy at its Trail, B.C. smelter. The policy meant that smokers could not smoke for a full eight hour or 12 hour shift.

The arbitrator agreed with the union that the policy discriminated on the basis of disability because addicted, heavy smokers typically experience withdrawal symptoms if they are unable to smoke for more than a few hours. He also noted that the majority of frequent smokers find it difficult to quit.

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The arbitrator clarified that the B.C. Human Rights Code does not protect the “right to smoke.” However, the case does recognize that an addicted smoker may have a physical and mental disability that employers must accommodate to the point of undue hardship.

In spite of the lack of clear decisions in Ontario linking smoking and disability Huggins says employment lawyers generally advise their clients to err on the side of caution.

“If a human rights tribunal finds an addicted smoker is disabled, refusing to hire that person is just as bad as posting a sign that ‘no pregnant women are allowed,’” she says.