Employment Law Essentials: Is Smoking a Disability?

Understanding Disability Discrimination and Accommodation in the Workplace

Employers need flexibility in hiring or dismissing employees, specifying job duties, and creating workplace policies and requirements which meet the needs of their business. This need for flexibility may, intentionally or unintentionally, run afoul of an employer’s obligations not to discriminate against an employee on the basis of a disability. Situations in which an employer could be liable for discrimination under employment law on the basis of disability are varied, but may include:

• Refusing to hire or consider an employee based on a disability;
• Dismissing or demoting an employee based on a disability;
• Imposing new policies and job requirements which adversely affect employees with a disability; or
• Harassing an employee on the basis of a disability, or allowing other employees to do so.

Most claims against private employers relating to discrimination on the basis of a disability will be brought before the British Columbia Human Rights Tribunal, but can also form the basis of a WorkSafe BC complaint or a wrongful dismissal action.

What Constitutes a Disability?

While many disabilities and the accommodation required by an employer are self-evident, there is no clear definition of what constitutes a “disability.” Many disabilities are invisible or do not affect job performance, leading to uncertainty for the employer as to its rights and obligations.

In determining whether a person has a disability, the physical or mental impairment of that person and what functional limitations that may arise from that impairment are considered. In addition, a disability may exist solely by virtue of how that person is perceived or treated by others, existing despite the absence of any impairment or functional limitation (Québec v Montréal (City); Québec v Boisbriand (City)).

Common disabilities include mobility impairments which necessitate the use of a wheelchair or a diagnosable mental illness such as post-traumatic stress disorder. There is no exhaustive list of disabilities, and a wide variety of conditions have been found to constitute a disability, including acne, addiction to smoking cigarettes and kleptomania. Some of these might be surprising to an employer, as they do not typically fall within the category of what one might consider to be a disability.

Meeting Your Obligations as an Employer

While bullying or harassment on the basis of a disability is never permitted under employment law, not every action by an employer which results in discriminatory treatment to an employee on the basis of disability, such as a refusal to hire, will result in a successful discrimination claim. If the discrimination is justified by a “bona fide occupational requirement,” (BC Human Rights Code, [RSBC 1996] C 210, section 13(4)) then an employer will not be liable. A bona fide occupational requirement is one which is adopted in good faith for a purpose that is rationally connected to the performance of the job at issue. An employer must also show that it cannot reasonably accommodate the employee’s disability without suffering undue hardship (British Columbia (Public Service Employee Relations Commission) v BCGSEU).

Whether an employer can justify a bona fide occupational requirement will vary. For example, it is unlikely that a moving company seeking to hire a labourer would be required to consider an applicant suffering from a physical disability such that they cannot lift heavy objects. However, a landscaping company seeking to hire a landscaper might be required to consider an applicant with the same physical disability if it is shown that the applicant would infrequently be required to lift heavy objects and other employees could assist them when necessary.

Businesses can take steps to minimize liability concerns arising from discrimination claims, including:

• Ensuring that their workplace has appropriate anti-harassment and anti-bullying policies and training in place;
• Giving careful consideration to whether recruitment procedures are justified in relation to the job at issue; and
• If an employee becomes disabled during the course of employment, making extensive efforts to accommodate that employee’s disability, in consultation with that employee.

Whether an employee has a disability, whether reasonable accommodation has been made, or whether a company’s human resources policies and procedures are lawful will vary depending on the employee, size of the employer, and the nature and success of the employer’s business. If an employer is uncertain as to their rights and obligations, they should seek legal advice.