Canadian Employment Law Today

ask an expert Have a question for our experts? Email Jeffrey.r.smith@thomsonreuters.com 2 | october 1, 2014 with tim mitchell Canadian HR Reporter, a Thomson Reuters business 2014 Have a question for our experts? Email Jeffrey.r.smith@thomsonreuters.com 2 | December 10, 2014 Answer: e question of whether it is dis- criminatory to refuse to hire an applicant with a health issue will depend on whether that applicant has a disability or is perceived to have a disability within the meaning of the applicable human rights legislation. If the applicant does have a disability fall- ing within the protection of the legislation, a prospective employer does not have the option of discriminating against the appli- cant based on the cause of that disability. Whether the employer disapproves of or questions the wisdom of the behavior that caused the disability or believes that it ren- ders the applicant less deserving of access to the employer's health care dollars than oth- ers is immaterial. us, a person who suff ers from emphy- sema arising from her own smoking is no less entitled to human rights protection than one who suff ers the same condition because of a genetic predisposition or from air pollu- tion. It is the role of human rights legislation to ensure that disabled employees are con- sidered for work on their individual merits. is does not normally encompass consid- eration of the merits of their chosen lifestyle. e Supreme Court of Canada made this clear in Quebec Québec (Commission des droits de la personne & des droits de la jeu- nesse) c. Montréal (Ville): "It is important to note that a 'handicap' may exist even without proof of physical limitations or the presence of an ailment. e 'handicap' may be actual or perceived and, because the emphasis is on the eff ects of the distinction, exclusion or preference rather than the precise nature of the handi- cap, the cause and origin of the handicap are immaterial. Further, the charter also pro- hibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future." In the cases before the Supreme Court, the employers had denied employment to the complainants because of current as- ymptomatic bio-medical conditions that the employers thought might become disabling in the future. In the same vein, it would cer- tainly be possible for an applicant to claim discrimination if an employer based a denial of employment on a concern that the appli- cant might become disabled and a drain on a health benefi ts program in the future. A rejected applicant could argue that her smoking was an addiction and a protected disability in the same manner as drug and alcohol addiction. An applicant who suff ers from addiction cannot be turned down for employment unless the employer can es- tablish that its discrimination on the basis of the applicant's addiction can be justifi ed as a bona fi de occupational qualifi cation. In an ordinary case, this would require the em- ployer to establish it could not accommo- date the applicant without undue hardship. e onus would be on the employer to prove that the costs attributable to hiring the ad- dicted individual would cause it undue hardship. is is a diffi cult onus to meet. ere is very little case law and no con- sensus on smoking as a protected addiction in the human rights context. A British Columbia arbitrator held, in Cominco Co. and USWA, Local 9705, Re, that nicotine addiction was a disability for the purposes of the B.C. human rights leg- islation and a ban on smoking in the work- place was discriminatory. In Stevenson v. Kelowna (City), a human rights tribunal re- fused to dismiss a complaint alleging that an applicant had suff ered discrimination when she was not hired due to her smoking addic- tion and the likelihood of health concerns leading to excessive absences. In doing so, the tribunal also recognized the possibility that nicotine addiction was a protected dis- ability under the B.C. legislation. However, in McNeill v. Ontario (Ministry of Solicitor General & Correctional Servic- es), an Ontario court concluded that addic- tion to nicotine was a temporary condition that many people voluntarily overcome and does not interfere with a person's ef- fective physical, social and psychological functioning. It was not a mental or physical disability for the purposes of the equality rights provisions of the Charter of Rights and Freedoms. At the present time, the question whether it would be discriminatory to refuse to hire an applicant because she smokes would de- pend on whether the applicant's smoking amounted to a protected disability under the governing human rights legislation. How- ever, a decision clearly tying the refusal to hire to disapproval of the underlying cause of an existing disability or to a desire to avoid the costs of a future disability could be prob- lematic. For more information see: • Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000 CarswellQue 649 (S.C.C.). • Cominco Co. and USWA, Local 9705, Re, 2004 CarswellBC 4103 (B.C. Arb.). • Stevenson v. Kelowna (City), 2009 Car- swellBC 264 (B.C. Human Rights Trib.). • McNeill v. Ontario (Ministry of Solicitor General & Correctional Services), 1998 CarswellOnt 2309 (Ont. Gen. Div.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary offi ce. He can be reached at (403) 267-8225 or tim.mitchell@norton- rosefulbright.com. Refusing to hire applicants with health issues stemming from lifestyle Question: Is it discrimination if an employer refuses to hire people with health issues due to personal choices (such as smoking) who could lead to extra health benefits costs? ask an expert tim mitchell Refusing to hire applicants with health issues stemming from lifestyle Question with health issues due to personal choices (such as smoking) who could lead to extra health benefits costs? norton rosE FulBright CALGARY wEBinars Interested in learning more about employment law issues directly from the experts? 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