Most employers have been bracing themselves for the legalization of recreational cannabis for several months. On September 27, 2018, the Ontario government introduced Bill 36, the Cannabis Statute Law Amendment Act, 2018. On October 17, 2018, Bill 36 received Royal Assent and came into force. The same day, the government proclaimed into force the Smoke-Free Ontario Act, 2017 (“SFOA”).
Bill 36 – The Cannabis Legislation
Bill 36 creates the new Cannabis Licence Act, 2018 and amends provincial legislation to account for the legalization of recreational cannabis. Most significantly, Bill 36 broadens the scope of places where recreational cannabis can be consumed.
Previously, under the Cannabis Act, 2017, the consumption of cannabis was generally restricted to private residences. Bill 36 now permits the consumption of medical and recreational cannabis in locations where smoking tobacco is permitted under the SFOA, including public outdoor spaces, like sidewalks and parks.
Bill 36 amends the SFOA to include both recreational and medical cannabis. In its original form, the SFOA included reference to medical cannabis only, as public consumption of recreational cannabis was prohibited.
Bill 36 prohibits smoking or vaping of cannabis in enclosed public spaces or enclosed workplaces, the indoor areas in condos, apartment buildings and university/college residences, or non-designated rooms in hotels, motels or inns. The consumption of cannabis is also prohibited in schools, hospitals, publicly-owned spaces and other areas as prescribed within the SFOA.
Bill 36 also creates the Cannabis Licence Act, 2018, which outlines a licensing scheme for private retail cannabis stores in Ontario. Municipalities must decide by January 22, 2019 whether or not to ban cannabis retailers within their community.
The SFOA and Posting Requirements
The SFOA repeals and replaces the Electronic Cigarettes Act, 2015 and the Smoke-Free Ontario Act, and effectively consolidates the provisions of those statutes into one statute. Due to the amendments by Bill 36, the SFOA now permits, subject to any municipal restriction, the consumption of medical and recreational cannabis in public outdoor locations were smoking tobacco is permitted, such as sidewalks and parks.
The regulations to the SFOA provide for new employer posting requirements in the workplace. The regulatory changes require employers, proprietors and others to post mandatory signs in a conspicuous manner and unobstructed from view. The signs must be posted at each entrance and exit of the enclosed workplace, place or area in appropriate locations. The signs must also be in sufficient number to ensure that employees and the public are aware that smoking and the use of electronic cigarettes is prohibited in the enclosed workplace, place or area.
The signs have prescribed height and width requirements. Employers are required to have a sign entitled “Tobacco Sign for Employers” and a sign entitled “Electronic Cigarette Sign for Employers”. Alternatively, an employer can have one sign entitled “Tobacco and Electronic Cigarette Sign for Employers”. Proprietors will also be required to post signs similar to the ones posted by employers. Retail and hotel operators will also be subject to specific posting requirements. The signs are viewable at: www.ontario.ca/page/no-smoking-no-vaping-signs-businesses. If you are an employer or proprietor, you should ensure that you are now in compliance with the posting requirements.
Employer Challenges
While employers have been required to accommodate the workplace use of cannabis for medicinal purposes since 2001, the legalization of the recreational use of cannabis will alter the landscape and undoubtedly lead to new challenges for employers. Most importantly, employers have an obligation under the Occupational Health and Safety Act to ensure a safe workplace for everyone. The legalization of recreational cannabis does not change the law that employers can require employees to come to work fit for duty and not be impaired by drugs or alcohol.
Prudent employers should review, amend or design substance use and abuse policies to contain guidelines in procedures about the recreational use of cannabis in the workplace. Employers may require advice about accommodation issues for medicinal use of cannabis. Employers may need representation in wrongful dismissal litigation cases involving impairment at work, or in human rights cases alleging discrimination due to drug addiction or dependency. New companies establishing a cannabis-related business may require legal guidance about the use of employment contracts to limit their exposure when terminating employees.
Pallett Valo’s Employment and Labour Group would be pleased to assist your organization with all human resource issues related to recreational or medicinal cannabis.