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What is the Impact on Employers from the Decriminalization of Marijuana? Ontario rolls out framework with Bill 174

The Federal government’s legislation has been the centerpiece of the decriminalization of marijuana discussions; however, each province in Canada will be required to create legislation to address the impact of the federal legislation. On December 12, 2017 Ontario’s government passed Bill 174 which establishes or amends four pieces of provincial legislation and sets out important information for employers to be aware of moving forward.

Bill 174 establishes the Cannabis Act, the Ontario Cannabis Retail Corporation Act, 2017, and the Smoke-Free Ontario Act, 2017. Bill 174 also amends the Highway Traffic Act. For most employers considering the impact of the decriminalization of marijuana on their workplace the Cannabis Act and the Smoke-Free Ontario Act, 2017 will be the most important.

The Cannabis Act establishes that no person shall consume cannabis in a public place, workplace, vehicle or boat. This confirms that employees will not be able to use marijuana at work – even when the drug is legalized.

However, employers should be cautious in establishing any blanket ban on the use of marijuana. This is because the Cannabis Act creates an exception for individuals who use medical marijuana. Medical marijuana is permitted to be used subject to limitations established in the Smoke-Free Ontario Act. Employers should also consider their obligations on the duty to accommodate in the Ontario Human Rights Code if an employee requires the use of medical marijuana as a result of a protected ground such as a disability.

The Cannabis Act also sets out the minimum legal age as 19. Individuals who are younger will be prohibited from possessing, consuming, purchasing or attempting to purchase cannabis.

Ontario has passed the Cannabis Act, but it is not yet law. This legislation will come into force on a day to be announced by the Lieutenant Governor.

The Smoke-Free Ontario Act, 2017 creates obligations for employers. Employers will be familiar with these obligations as they previously existed for tobacco products and electronic cigarettes in the Smoke-Free Ontario Act and the Electronic Cigarettes Act. Employers should consider revising their smoke free policies to reference the new legislation. Employers without smoke free policies should consider adopting policies and ensuring they are in compliance with the legislative objectives.

The Smoke-Free Ontario Act, 2017 establishes that no person shall smoke or hold lighted tobacco, medical cannabis, an electronic cigarette, or consume a prescribed product in an enclosed workplace. An employer has an obligation to ensure compliance with this requirement. Employers must provide notice to their employees of the restriction, post signs throughout the workplace, and not provide ashtrays or other similar equipment unless attached to a vehicle. Employers must also ensure that employees or persons who do not comply with these requirements are removed from the space.

An employee can make a complaint to an inspector if this prohibition on use in an enclosed workplace is not enforced.  Fines can be imposed on corporations for up to $100,000 for a first offence and up to $500,000 for a second and subsequent offence.

Employees are also protected from any form of reprisal for making a complaint under this Act. If an employee does face repercussions from their employer for making a complaint a fine can be imposed of up to $10,000 for a corporation and $4,000 for individuals.

Employers of long term care homes, resident facilities operating as a retirement home, a supportive housing residence, a psychiatric facility, or a facility for veterans can be exempt from the obligation to provide a smoke free environment. This exception is available if there is a room designated as a controlled area; the area is provided safely; the use of the area is limited to residents; the room is an enclosed space with ventilation; and the room is identified as a controlled area.

Hotels, motels or inns are also exempt from the obligation to provide a smoke free environment if there is a registered guest or invited guest of a registered guest; the room is usually used for sleeping accommodation; the room is designated as smoking; and the room is fully enclosed.

The Smoke-Free Ontario Act, 2017 is currently not in force and will be proclaimed into force on a future date to be determined by the Lieutenant Governor.

Any of the lawyers at CCPartners would be pleased to assist employers in understanding Bill 174 and to begin the process of preparing for the impact of the decriminalization of marijuana in the workplace.