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The Ontario government has introduced proposed amendments to the province’s regulatory framework for cannabis. If passed, Bill 36, the Cannabis Statute Law Amendment Act, 2018, will alter the newly-introduced Cannabis Act, 2017  (not yet in force) and other provincial legislation to reflect the current government’s plan for dealing with the legalization of recreational cannabis on October 17, 2018.

Key changes under Bill 36

Employers should take note that, if passed in its current form, Bill 36 will:

  • remove the distinction between recreational cannabis and medical cannabis under the Smoke-Free Ontario Act, 2017  (not yet in force) (SFOA 2017);
  • prohibit smoking of cannabis, whether recreational or medical, in enclosed workplaces, enclosed public spaces and designated buildings, subject to certain exemptions for controlled areas in certain residential care facilities, hospices, designated guest rooms in hotels, motels and inns, and scientific research and testing facilities;
  • effectively permit smoking of cannabis in locations where tobacco smoking or use of electronic cigarettes is permissible under the SFOA 2017, such as sidewalks, public outdoor spaces, parks, etc.;
  • prohibit consuming cannabis in any manner in a vehicle or boat, whether by the driver or passenger;
  • conform with the definition of cannabis in Bill C-45, the federal government’s cannabis legislation; and
  • rename the Cannabis Act, 2017, the Cannabis Control Act, 2018.

If passed, Bill 36 will come into force on the later of October 17, 2017 or the date the Bill receives Royal Assent. The government has also proposed amendments to a regulation under the SFOA 2017 which would, among other things, effectively permit consuming cannabis in a vehicle or boat used as a residence provided certain other criteria are met. The government is seeking public comment by October 8, 2018 on the proposal.

What remains intact

Under Bill 36, the SFOA 2017 will still explicitly prohibit smoking writ large in enclosed public places and enclosed workplaces. Addressing concerns of second-hand smoke of all kinds, the SFOA 2017 effectively treats cannabis smoke in the same way as tobacco smoke.

The meaning of “enclosed” is defined 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.

Employers should also be aware of the following:

  • 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 36;
  • substance testing policies are not impacted by Bill 36 and are only permissible in limited circumstances; and
  • employees can continue to refuse unsafe work under the Occupational Health and Safety Act.

What are your obligations

Under Bill 36, employers have the following obligations:

  • ensure that no one smokes or holds lighted tobacco or cannabis, or uses an electronic cigarette, in an enclosed workplace or other area over which the employer exercises control;
  • ensure that anyone who refuses to comply with the smoking prohibition does not remain in the enclosed area;
  • post prescribed signs respecting the smoking prohibition; and
  • remove ashtrays or similar equipment from the enclosed workplace.

An inspector appointed by the government may, without a warrant or notice inspect a workplace to ensure that an employer is fulfilling its obligations under the legislation. Where an employer fails to comply, they can be subjected to a fine of up to $100,000.00 for a first offence or $300,000.00 for subsequent offences.

In addition, employers continue to have a legal obligation to accommodate medical use of cannabis. 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. However, employers should nonetheless consider whether their workplace policies capture the employer’s expectations with regard to issues such as:

  • employee use of recreational cannabis during and prior to work; and
  • smoking prohibitions in or around the workplace and at company-sponsored events.

The employer’s policies will need to clearly define any prohibitions the employer intends to enforce. Such policies would need to be drafted as soon as possible, since legalization is fast approaching on October 17, 2018, and should be reviewed by legal counsel prior to implementation.

– Many thanks to Shereen Aly for her assistance with this article.