Following the Senate’s historic vote in favour of Bill C-45, the Cannabis Act, the Federal Government announced yesterday that recreational marijuana will become legal on October 17, 2018. In anticipation of Bill C-45 becoming law, the provinces have begun preparing a framework for regulating the production, distribution, sale, possession and consumption of cannabis. Ontario’s response is Bill 174. With legalization fast approaching, we outline below key aspects of Bill 174 and steps to help employers prepare for the new reality.

What is Bill 174?

The Bill, known as The Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017, is Ontario’s omnibus legislation which will enact the Cannabis Act, 2017, the Ontario Cannabis Retail Corporation Act, 2017, the Smoke-Free Ontario Act, 2017, and amend the Highway Traffic Act.

The Smoke-Free Ontario Act, 2017 comes into force on July 1, 2018 and will repeal the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015.

A Broad View of “Smoke-Free”

Among other things, Bill 174 explicitly prohibits smoking writ large in enclosed public places including workplaces. Addressing concerns of second-hand smoke of all kinds, the legislation effectively treats marijuana as tobacco. Bill 174 bans the smoking of tobacco or medical cannabis, the use of vapour products like e-cigarettes, and the consumption of prescribed products and substances in an enclosed public place including enclosed workplaces.

The meaning of “enclosed” is defined in Bill 174 as any premises covered by a roof. Enclosed workplaces include places or vehicles where employees work or frequent in the course of their employment, even if they aren’t working at the time. Enclosed public spaces are where the public is invited or permitted access. Schools, child care centres, any indoor areas of condominiums and residences, and reserved seating areas of sports and entertainment venues also fall under prohibited areas.

No Recreational Use in Workplaces

Recreational marijuana use will, however, remain prohibited in:

  • any public place;
  • workplaces; and
  • motorized vehicles.

Bill 174 also gives protection for home health-care workers against second-hand smoke or vapour even in cases where patients will legally be entitled to use the substances. These employees will have the right to leave the premises, unless leaving would present an immediate serious danger to the health of any person.

Considerations for Employers

Employers need to be mindful of their obligations under Bill 174, as follows:

  • ensure that no one smokes or holds lighted medical marijuana in an enclosed workplace or other area over which the employer exercises control;
  • post signs respecting the smoking prohibition; and
  • ensure that anyone who refuses to comply does not remain in the enclosed area.

Employers should also be aware of the following:

  • employees can continue to refuse unsafe work under the Occupational Health and Safety Act;
  • employers may not dismiss or threaten to dismiss, discipline or suspend, impose any penalty, or intimidate a worker because they are in compliance with, or sought enforcement of, Bill 174; and
  • drug and alcohol testing policies are not impacted by Bill 174 and are only permissible in limited circumstances.

In addition, employers continue to have a legal obligation to accommodate medical use of marijuana. Federal and provincial human rights legislation requires employers to accommodate employees with disabilities to the point of undue hardship, which is established on a case by case basis. Dependence on recreational cannabis where it amounts to a disability would also require accommodation, as is the case with alcohol dependence. Employers may also be required to cover benefits claims for employees with medical cannabis prescriptions.

Key Takeaways

Employers can continue to expect that employees need to show up sober and ready to perform their duties. Safety sensitive positions, such as those requiring the use of heavy equipment, should be clearly identified in job descriptions and policy documents. Random testing should only be undertaken after consultation with legal counsel. Employers who haven’t done so already should be sure to review and revise outdated policies that address “unlawful off-duty conduct” with respect to marijuana use.

Employers also need to ensure a smoke-free environment as of July 1, 2018 that encompasses tobacco, e-cigarettes and medical marijuana use. This includes:

  • clear communication to employees about the changes;
  • posting required signage; and
  • addressing any contraventions by employees or others.

– With thanks to Victoria Woo for her assistance with this article.