In the ever-evolving landscape of employment law, one topic that has gained significant attention is the use of marijuana in the workplace. This issue became even more complex with the legalization of marijuana in Canada. As an employer in Ontario, it’s important to understand the specific laws and regulations governing marijuana use to maintain a safe and compliant work environment. In this blog post, we will delve into the key aspects of employment law in Ontario related to marijuana use, providing you with the knowledge you need to make informed decisions and establish best practices within your organization.
Understanding the federal legal framework
On October 17, 2018, the federal government enacted the Cannabis Act, which put in place a modern cannabis control framework to strictly regulate and restrict access to cannabis in Canada. The Act legalized marijuana and regulated the production, distribution, sale, import and export, and possession of cannabis for adults of legal age. However, this legislative change prompted provinces and territories, including Ontario, to establish their own laws regarding the sale, purchase, possession and use of cannabis based on its federal counterpart. It’s important to recognize that these provincial and territorial laws can differ, and as an employer in Ontario, you need to abide by the specific regulations applicable in your jurisdiction.
Understanding the Ontario legal framework
Ontario followed suite by establishing the Cannabis Control Act on October 17, 2018, regarding the sale, purchase, possession and use of cannabis. In Ontario, any person 19 and older can buy, use, possess and grow recreational cannabis within the legal limits. A person 19 and older can only consume recreational cannabis in:
- A private residence, including a porch or backyard.
- A condo or apartment and its balcony (refer to your building’s rules or your lease agreement for specific details).
- Public places not prohibited by legislation.
A person is responsible for knowing where he or she can smoke or vape cannabis according to the Smoke Free Ontario Act, the Ontario Cannabis Control Act, and any municipal by-laws. According to the Ontario Cannabis Control Act, “No person shall consume cannabis in a public place, a workplace within the meaning of the Occupational Health and Safety Act, a vehicle or boat. Medicinal cannabis users are subject to any prohibitions or restrictions set out under the Smoke-Free Ontario Act, 2017.”
Under the Smoke-Free Ontario Act, 2017 discussed below:
- “smoking” means smoking (inhaling and exhaling) or holding lighted tobacco or cannabis (medical or recreational)
- “vaping” means inhaling or exhaling vapour from an electronic cigarette (e-cigarette) or holding an activated e-cigarette, whether or not the vapour contains nicotine.
Cannabis retail requirements are under the relevant provincial legislation, including the Cannabis Control Act, the Cannabis Licence Act, Ontario Cannabis Retail Corporation Act, 2017 and the regulations.
The Smoke-Free Ontario Act, 2017
Under the Smoke-Free Ontario Act, 2017, you are told were you can’t consume recreational cannabis which extends its prohibitions to “enclosed public places” and “enclosed workplaces,” along with other designated smoke-free and vape-free spaces. An “enclosed public place” refers to any indoor area to which the public is invited, regardless of entry fees. On the other hand, an “enclosed workplace” covers indoor spaces where employees work during their employment, provided they are not primarily private dwellings. Understanding the definitions and boundaries set by this act is crucial for ensuring compliance and a smoke-free workplace.
While the Smoke-Free Ontario Act, 2017, imposes strict rules, there are exemptions that permit smoking or holding lit cannabis in enclosed workplaces within certain residences. These residences include long-term care homes, retirement homes, supportive housing residences, psychiatric facilities, or veterans’ facilities. However, specific conditions must be met, such as having a designated and properly ventilated indoor room for marijuana use. It’s important to note that this room is limited to residents of the residence, and employees have the right to refuse entry.
Employer responsibilities under the Smoke-Free Ontario Act
As an employer in Ontario, you have several responsibilities under the Smoke-Free Ontario Act, 2017. These include:
- Ensuring compliance with the law within your workplace.
- Informing employees who work in enclosed workplaces of the prohibitions set out in the law.
- Posting clear signage throughout the workplace, including in washrooms, to notify employees and visitors of the prohibitions.
- Removing ashtrays or similar equipment from enclosed workplaces.
- Taking action to remove individuals who violate the prohibitions from your enclosed workplace.
If an individual smokes or vapes where it is not allowed, they may be charged with an offence and subject to a fine ($1,000 for a first offence, $5,000 for any further offence) if convicted.
Occupational Health and Safety Act
According to the Occupational Health and Safety Act, section 25(2)(h), employers must take every precaution reasonable in the circumstances for the protection of a worker. this includes your due diligence as an employer to protect your workers and provide a safe working environment from safety risks due to cannabis impairment. For example, driving under the influence – even if you use cannabis medicinally, if a substance has impaired your ability to drive or operate a vehicle, it is illegal for you to be driving.
Best business practices
To navigate the complexities of marijuana, use in the workplace effectively, consider implementing these best business practices:
- Drafting or amending company policies regarding drug and alcohol use.
- Clearly articulating consequences for violating company rules and policies regarding drug and alcohol use.
- Addressing an employer’s duty of accommodation for medical marijuana users.
- Posting prominent signage that clearly states the sale and use of marijuana in the workplace are prohibited.
- Expanding training to meet your obligations under the Occupational Health and Safety Act for training your employees on safe practices.
- Considering the implementation and clear communication of a drug use testing policy to ensure the safety of all employees.
- Regularly reviewing policies, posting them in the workplace, and requiring all employees to read and acknowledge them.
- When addressing an employer’s duty of accommodation for medical marijuana users and to avoid the potential for termination without cause lawsuit, seek guidance and advice from an employment lawyer.
Final thoughts
In Ontario, as an employer, it’s important to stay informed about the legal framework surrounding marijuana use in the workplace. By understanding the federal Cannabis Act, the Ontario Cannabis Control Act, the Smoke-Free Ontario Act and the Occupational Health and Safety Act, along with their exemptions and your responsibilities as an employer, you can create a compliant and safe work environment. Implementing best business practices and clear policies will help you navigate this evolving landscape effectively. Remember, maintaining a knowledgeable and compliant workplace is not only a legal requirement but also essential for the well-being of your employees and the success of your organization.
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