Editorial: Employer smoking ban an unfair intrusion

While it’s fine for governments, institutions, and businesses to restrict smoking, an Ontario employer went too far in trying to implement a total ban on its employees from lighting up during the workday.

In the recent case of United Steelworkers Local 7175 v. Veyance Technologies Canada Inc., arbitrator Norm Jesin considered the union’s grievance of the employer’s two-phase smoking policy. In the first phase that began in 2014, employees could smoke in designated areas on company property during their breaks. In the second phase that began in January 2015, employees couldn’t smoke anywhere on company property nor could they leave the premises to light up a cigarette. The policy, then, was an effective ban on smoking while at work.

In support of its policy, the company raised a few interesting points: the costs associated with increased absenteeism and insurance benefits as a result of the health effects of smoking. It also noted government policies aimed at reducing smoking, the fact it had already prohibited employees from leaving the premises, and the need to ensure they return from their breaks on time. It also pointed out it pays employees during their breaks.

In addition, the employer referred to case law that essentially upheld such policies. But as Jesin noted, the employer’s property in one of the two cases was so large that a ban on smoking on the premises meant the employees couldn’t leave during their breaks and return to the workplace on time. That wasn’t the case at Veyance Technologies, Jesin found.

There are arguments on both sides, but it’s going too far for an employer to completely bar employees from smoking during the workday. Employees have the right to go off the premises during their breaks and, consequently, partake in a legal activity such as smoking at that time. It’s true that some employees take too long while on their breaks, but that’s an issue for the employer to find a way to monitor rather than banning smoking.

Jesin, then, was right to find the prohibition a violation of the collective agreement. The employer’s policy was an unfair intrusion onto employee rights.
Glenn Kauth

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