Cannabis: What It Means For Ontario Employers

Authored By: Randy Bauslaugh | Publish Date: December 12, 2018

Recreational cannabis consumption is now lawful; however legalization is still subject to different provincial standards as the provinces and territories are responsible for oversight in the distribution and sale of cannabis. In addition, the provinces and territories are able to restrict where cannabis may be consumed. And, of course, the use and availability of Cannabis has implications under provincial health and safety legislation as well as the duty to accommodate on a case-by-case basis when dealing with medicinal cannabis or substance dependency that may constitute a disability under provincial human rights legislation. There are also obvious financial, design, and other implications for employee benefit plans.

Legal Landscape

When the federal Cannabis Statute Law Amendment Act, 2018, passed into law on October 17, the legal landscape for the regulation of recreational cannabis in Ontario changed. One of the changes that comes from the Cannabis Statute Law Amendment Act, 2018, is how it modifies where cannabis consumption is allowed and where it is prohibited.

The new legislation has now tasked the Smoke-Free Ontario Act, 2017, with the job of regulating where cannabis (both medicinal and recreational) can lawfully be consumed. Effective October 17, subject to any additional restrictions contained in municipal bylaws, the smoking or holding of lighted cannabis was prohibited in the same places where the smoking or holding of lighted tobacco, the use of an electronic cigarette (which is defined to include a vaporizer or inhalant-type device), or the consumption of a prescribed product or substance were prohibited. Conversely, the smoking and vaping of cannabis will be allowed wherever the smoking of tobacco is allowed.

The Ontario government has provided a list of places where people cannot smoke or vape cannabis in Ontario. The list of places are:

  • An enclosed public place
  • An enclosed workplace which is defined as the inside of any place, building, or structure or vehicle or conveyance, or a part of any of them, that is covered by a roof, that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and that is not primarily a private dwelling or a prescribed place
  • Schools and places where children gather
  • Publicly owned sports fields (with the exception of golf courses), nearby spectator areas and public areas within 20 metres of these areas
  • Within nine metres from the entrance or exit of hospitals, psychiatric facilities, long-term care homes, and independent health facilities; the outdoor grounds of hospitals and psychiatric facilities; and in non-controlled areas in long-term care homes, provincially-funded supportive housing, designated psychiatric or veterans’ facilities, and residential hospices
  • The indoor common areas of condominiums, apartment buildings, or university or college residences
  • Non-designated guest rooms in hotels, motels, and inns
  • Vehicles or boats under a person’s care or control, whereby no form (smoking, vaping, eating) of cannabis consumption is allowed
  • Other outdoor areas, such as:
  • in restaurants and on bar patios and public areas within nine metres of a patio
  • on outdoor grounds of specified Ontario government office buildings
  • in reserved seating areas at outdoor sports and entertainment locations
  • grounds of community recreational facilities, and public areas within 20 metres of those grounds
  • in sheltered outdoor areas with a roof and more than two walls which the public or employees frequent, or are invited to (e.g. a bus shelter).

The Ontario government has also provided a list of places where people can smoke or vape cannabis in Ontario. The list of places are:

  • Private residences that are not also workplaces (e.g. long-term care and/or retirement homes)
  • Many outdoor public places (e.g. sidewalks, parks)
  • Designated guest rooms in hotels, motels, and inns
  • Residential vehicles and boats that meet certain criteria
  • Research and testing facilities if the cannabis use is for scientific research and testing purposes
  • Controlled areas in long-term care homes, certain retirement homes, residential hospices, provincially-funded supportive housing, designated psychiatric facilities, or veterans’ facilities

What does this mean for Ontario employers?

Legitimate Authority

For employers in Ontario, the Cannabis Statute Law Amendment Act, 2018, now restricts cannabis in a manner similar in some respects to how tobacco consumption is regulated. However, importantly, the new legislation does not alter an employer’s otherwise legitimate authority to adopt its own additional restrictions on cannabis through appropriate workplace policies. It also does not alter an employer’s legitimate authority to prohibit and address impairment at work.

In light of the new legislation, Ontario employers should be reviewing their existing policies to ensure that they reflect the most recent changes in the legislation. Employers should also ensure their policies clearly communicate to employees what is and is not permitted. Employers should also consider how cannabis use might affect employee benefit policies.

When determining appropriate policies regarding cannabis at work, employers should take into consideration their duties to protect worker health and safety under the Occupational Health and Safety Act, as well as the duty to accommodate on a case-by-case basis when dealing with medicinal cannabis or substance dependency that may constitute a disability under the Human Rights Code.

No doubt there will be many legal questions as employers and the administrators of employee benefit plans consider the financial and legal implications of the impact of the legalization of recreational cannabis on their workplaces and benefit plans.

Randy Bauslaugh leads McCarthy Tétrault’s national pensions, benefits and executive compensation practice


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