Arbitrator Rules Workplace Smoking Ban Violation of Collective Agreement

October 15th, 2015 by

Mark Twain once quipped that “quitting smoking is the easiest thing in the world; I’ve done it thousands of times.” While one can almost hear the sardonic drip from his words, smoking has become one of modern society’s great points of contention. It is widely accepted that the practice is deadly; however, the extent to which government and society at large can or should consciously prevent a person from smoking has always been in debate. One only need think of the various bans on public smoking, sin taxes and restrictions on advertising to get an idea.

However, a recent arbitration dealt with the interesting issue of the extent to which an employer can prevent employees from smoking during the work day. The case arose from a two-phase policy that had been implemented by Veyance Technologies, the employer in question, in January 2014. The first phase had allowed employees to smoke in designated areas on the property during their breaks and had been implemented with no objection. However, the second phase prohibited employees from smoking anywhere on the employer’s property and from leaving the property during their breaks. When the second phase took effect in January 2015, the employees took immediate objection to this and their union filed a grievance on their behalf.

In an attempt to justify the policy, the employer argued that smoking negatively impacted employee health and safety, which resulted in reduced productivity, work quality, and an increase in absenteeism. The union, on behalf of the employees, argued that the second phase of the policy amounted to an ‘unreasonable and unsustainable’ exercise of management rights and a trampling of the employee’s freedom of choice.

In the result, Arbitrator Jesin sided with the union. He held that, while an employer may legitimately prohibit smoking on their property, they cannot prohibit a person from exiting the property to have a quick smoke, if it doesn’t impact their timely return to work after their break. The arbitrator held that an employee leaving the property for a few minutes and returning before the break ends would have no impact on their productivity and that, by allowing them to leave the property, the opportunity for unwanted second-hand smoke on company property is prevented. The arbitrator rejected the argument that, because it is a paid break, the employer is allowed to dictate what an employee does during that break. He held that the paid nature of the break does not change the character of that period from being an employee break. As such, he held that the policy was a violation of the collective bargaining agreement, and remitted the matter back to the parties to amend the policy in accordance with his ruling.

If you believe that your employer is violating your employment rights or you have any questions related to employment law and how it affects your rights as an employee, contact the experienced employment law team at Devry Smith Frank LLP.

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