Workplace Organization & Direction

Ontario’s revised regulatory framework for cannabis is now in effect. Bill 36, the Cannabis Statute Law Amendment Act, 2018, received Royal Assent and came into force on October 17, 2018, amending 18 provincial statutes including the Cannabis Act, 2017  (now the Cannabis Control Act, 2017 ) and the Smoke-Free Ontario Act, 2017  (SFOA 2017).

Prior to Bill 36, recreational cannabis and medical cannabis were to be regulated separately, and consuming recreational cannabis in a “workplace” or “public place” (both broadly defined and not limited to enclosed areas) was to be entirely prohibited. Bill 36 effectively eliminates the distinction between recreational cannabis and medical cannabis for the purposes of regulating public consumption (among other things). To help employers adjust to the new reality of legalized cannabis, we outline below key aspects of the new legislation.

What is permitted

Smoking of cannabis, whether recreational or medical, is effectively permitted in locations where tobacco smoking or use of electronic cigarettes is permissible under the SFOA 2017, such as sidewalks, public outdoor spaces, parks, etc.

What is prohibited

The SFOA 2017 expressly prohibits:

  • 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; and
  • consuming cannabis in any manner in a vehicle or boat, whether by the driver or passenger.

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.

Employer obligations

Employers are required to:

  • 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.

Failure to comply with the above requirements may result in a fine of up to $100,000 for a first offence or $300,000 for subsequent offences.

No reprisals

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 the SFOA 2017.

Substance testing

Substance testing policies are not impacted by the new legislation and are only permissible in limited circumstances.

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 at company-sponsored events); 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 need to be drafted as soon as possible, since legalization is now here, and should be reviewed by legal counsel prior to implementation.

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

One of the clearest messages from the #MeToo movement has been that sexual harassers need to be held accountable for their actions. This message has resonated with employers and most now appreciate that they need to promptly investigate and appropriately address misconduct once they become aware of it. But employer obligations extend beyond remedial action and include, in Ontario and other jurisdictions, implementing preventative policies and educating employees on the policies.

However, a new US research report indicates that policies aren’t enough and employers need to pay attention to certain warning signs in the workplace to effectively stem sexual harassment. The report’s authors contend that organizational climate is the greatest determinant of sexual harassment occurring in a workplace. In fact, corporate culture can either encourage or discourage an employee to harass, according to the authors. Continue Reading Is Your Workplace Prone to Sexual Harassment? 5 Warning Signs to Watch For

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. Continue Reading Legalization is in the Air – Ontario Moves to Amend Previous Government’s Cannabis Legislation

We’re pleased to share an informative article, “Know the Joint Employer Risks Where You Operate“, authored by our colleagues Will Woods and Emily Harbison. The article outlines key developments in joint employer liability for franchisors operating in Australia, Canada and Mexico and describes a proactive approach to help mitigate against risk. It was published in the September 2018 edition of Franchising World. Follow this link for further information about how we can assist employers in this area.

Ontario universities and publicly-funded colleges are now required to develop and publicly post a free speech policy by January 1, 2019. No Bill has yet been introduced to detail these requirements. However, the government outlined the minimum standard for the policy and related requirements in a communication issued by the Office of the Premier on August 30, 2018. Continue Reading Ontario Moves to Protect Free Speech on Campus: Universities and Colleges Must Develop Free Speech Policy

Recreational cannabis is very much in the spotlight as the date for legalization approaches. Yet issues related to employee use of medical cannabis are still front and centre for many employers, as demonstrated by a pair of recent arbitration decisions: Re IBEW, Local 1620 and Lower Churchill Transmission Construction Employers Assn. Inc. (Uprichard) (2017), 281 LAC (4th) 246 (“Lower Churchill 1”) and Re Lower Churchill Transmission Construction Employers Assn. Inc. and IBEW, Local 1620 (Tizzard) 2018 Carswell Nfld 198 (“Lower Churchill 2”). Continue Reading Inability to Monitor Residual Impairment From Medical Cannabis May Constitute Undue Hardship

 

Since NAFTA came into force in 1994, many Canadian companies established or expanded their business interests in Mexico, including Bombardier, Apotex and McCain, to name a few. With the forthcoming change in Mexico’s administration, Canadian companies with cross-border operations and domestic companies are likewise wondering what the future holds in terms of labour policy. Our colleague in Mexico City, Salvador Pasquel Villegas, sheds light on what to expect here.

As promised in the 2015 election campaign, the federal government has introduced accessibility legislation. Bill C-81, An Act to ensure a barrier-free Canada (Accessible Canada Act)  is the result of a cross-country consultation process with Canadians and received First Reading on June 20, 2018. Continue Reading Federal Accessibility Legislation in the Works

The National Assembly of Quebec has made wide-ranging changes to the province’s labour standards legislation. The amendments were enacted through Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, which received Royal Assent on June 12, 2018. Employers with operations in Ontario and Alberta, should also be aware that these provinces also made significant changes to their respective employment standards legislation earlier this year.

This is the first of two articles summarizing the key changes in Quebec. This article outlines changes to the scope of liability for directors and officers and new compliance obligations for Quebec employers. The second article will outline changes to leave entitlements. Continue Reading Quebec Makes Broad Changes to its Workplace Standards

Further to our earlier post, the new Ontario government announced today that it has delayed the coming into force of the Smoke-Free Ontario Act, 2017, which officially came into force on July 1, 2018. The delay is intended to permit the government to assess the regulation of vaping in the province. The existing legislation, the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015, remains in effect in the interim.

We will continue to monitor the status of the Smoke-Free Ontario Act, 2017.