Thanks to our Canadian colleagues for this alert:
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 centers, any indoor areas of condominiums and residences, and reserved seating areas of sports and entertainment venues also fall under prohibited areas.
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 offense or $300,000 for subsequent offenses.
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 policies are not impacted by the new legislation and are only permissible in limited circumstances.
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.
Please reach out to your Baker McKenzie employment lawyer for more details.