A recent article in the National Post profiled Jack Kowalski, a Montreal-based entrepreneur who, along with his brother Joe, co-owns three white-water boating companies in Quebec and Ontario. The two brothers employ over 400 people during peak season, many of whom work at Whirlpool Boat Tours, which brings tourists through the rapids near Niagara Falls. This particular branch is operated by Jack, who was in the news for a unique hiring policy: no smokers, even off the job.
According to the Post, Roger Nugent was close to being hired when he revealed himself as an occasional smoker. So serious was Kowalski’s practice that Nugent quit smoking and was asked to sign a contract stipulating that the recommencement of his habit would be grounds for termination.
“People say ‘You can’t do that, it’s discrimination,’” Kowalski told the Post. “I say, ‘Look, I’ve been doing it for 30 years and I’m proud of it. I’m trying to help you.’ … I’m not hiring anybody in my organization that leaves work and goes home and smokes. I’m not going to do it.”
While Kowalski insists that he is motivated by good intentions, the legality of his policy is somewhat dubious. Several employment lawyers who spoke to the National Post suggested the rule might not pass “judicial scrutiny.”
To be clear: there are instances when smoking on the job can lead to legally justified disciplinary action. Toronto-based employment lawyer Richard Charney told the National Post that while companies are free to set whatever conditions for employment they choose, the condition must abide by human rights codes. The courts have considered addiction to be a disability, and refusing to hire someone based on a disability could be considered discrimination.
According to a 2014 Toronto Star article, though, the Ontario Human Rights Tribunal has not ruled on whether nicotine addiction in particular can be considered a disability. Indeed, as the article states, “there is no legislation that says an employer can refuse to hire someone who chooses to smoke on his own time.”
While refusing to hire a person based on their choice to smoke seems to be legally questionable, employers are well within their rights to ban smoking on the job. According to a Conference Board of Canada report, “on average a smoker costs a company about $4,200 a year more than non-smokers,” including about $3,800 in lost productivity from unsanctioned smoking breaks. Besides monetary loss, the health and safety of employees is usually a primary concern for employers who ban smoking.
It is Jack Kowalski’s policy of banning even those potential employees who smoke on their own time that causes scepticism among employment lawyers. As Queen’s University law professor Kevin Banks told the National Post:
“Sooner or later such a policy is likely to run into legal problems. I am not aware of any case where the risks to the health of the employee off the job due to something like smoking have justified a no-hire policy … as noble as the goal may be.”
