Canadian smokers nervous about U-Haul’s announcement that it will no longer hire nicotine users can exhale, at least for now.
The North American moving truck company said the new rule was in the interest of establishing a healthy corporate culture. The change, which doesn’t apply to current employees, will only take place in 21 U.S. states where laws permit such restrictions.
Some have called the practice discriminatory; others say it’s fair game. There are those who alleged the company was just trying to reduce the cost of its employee benefits plan.
Though U-Haul operates in Canada as well, an expert in employment law says it’s highly unlikely the nicotine-free job requirement will take hold north of the border.
Stuart Rudner, an employment lawyer based in Toronto, explained that in Canada, employers are forbidden under the Human Rights Act to discriminate against applicants based on race, sex and disability, among other provisions.
Addictions are classified as a disability, he said, and would therefore not be something an employer could factor in while making hiring decisions.
Rudner said the law hasn’t been tested in Canada on this particular point. But if someone were to take a potential employer to court with proof their status as a smoker prevented them from being hired, Rudner says it’s likely they would win.
“It’s actually the addiction that protects the person,” he said.
However, there are a few exceptions under which employers can eliminate a potential hire based on a disability. They usually arise when a smaller employer can prove that the employee’s disability, whether it’s the use of a wheelchair or an addiction to cigarettes, could lead to an undue strain on the business, financial or otherwise.
He said it’s also possible that an antismoking agency could discriminate against non-smokers because of the nature of their work, adding, “I would love to take that case on.”
Rudner said he wasn’t surprised to hear of U-Haul’s policy change. He said more and more companies in the U.S. have been doing this “for years if not decades.” However, he said it’s the first time a well-known company has made a public announcement about such a policy.
In the future, job ads specifying non-smoking may be the new norm, Rudner said. But a significant legal change would be required to make that happen in Canada.
“It seems logical, just because of public perception of smoking,” he said. “(But) I don’t think we’re at that point.”
That doesn’t mean there aren’t any Canadian employers out there who already won’t hire smokers. In fact, a quick search on Indeed.com turns up a number of job postings that stipulate hires must be non-smokers.
Some of them are for health care aide positions, which Rudner said could have a case for such a restriction. But others are for positions at companies such as marketing firms where there is less of an argument that a non-smoking requirement is necessary.
However, until an employee or job applicant actually brings a case to the courts, Rudner said it’s likely companies will continue to use these hiring policies.
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In fact, two Canadian companies have made the news in recent years for refusing to hire smokers.
In 2013, Ottawa-based tech company Momentous Corp., said it had a strict policy not to hire smokers. And in 2016, the owner of Montreal-based boating company Saute Moutons also made headlines for refusing to hire smokers.
Smaller companies are more likely to enforce these restrictions, said Rudner — that is, until someone takes an employer to court.
“If they did, they would probably be successful,” he said.
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