While the Ontario's Fair Workplaces, Better Jobs Act, 2017 ("Bill 148") brought changes to the Ontario Employment Standards Act, 2000, employers should be aware of additional legislative changes in Ontario that may affect employers. On December 12, 2017, the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 (the "Act") better known as Bill 174 received Royal Assent. However, some of the acts enacted under the bill are not yet in force.
Effect of the Legislation
Bill 174 is omnibus legislation enacting the Cannabis Act, 2017 (not yet in force), the Ontario Cannabis Retail Corporation Act, 2017 and the Smoke-Free Ontario Act, 2017 (not yet in force) (repealing the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015), and making amendments to the Highway Traffic Act. Altogether, Bill 174 serves as the provincial framework in anticipation of the enactment of federal legislation relating to cannabis' cultivation, sale, distribution and consumption (An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts or Bill C-45), which is currently at its second reading in the Senate.
Significant Changes Affecting Employers
Prohibition on the use of Products
Bill 174 provides that the smoking of tobacco or medical cannabis, the use of electronic cigarettes and the consumption of prescribed products and substances will be prohibited in several locations including enclosed public places, such as any premises covered by a roof where the public is invited or permitted access; enclosed workplaces, such as any premises covered by a roof, including vehicles; schools, child care centres, and reserved seating areas of sporting arenas. The use or consumption of recreational cannabis will be prohibited in any public place or workplace and will remained confined to private premises or locations.
The obligation to enforce the prohibition will lie with employers and proprietors. Employers' obligations will include ensuring compliance with applicable legislation, giving notice to employees of the prohibition, posting any signs respecting the prohibition, and ensuring that an individual who refuses to comply with the legislation does not remain in the workplace. More specifically, the Smoke-Free Ontario Act provides that regulations may be enacted to deal with employees' complaints with respect to a failure of an employer to enforce the prohibition and respect its obligations. It remains to be seen to what extent the complaint process will be dictated by legislation, if at all.
Right to a "Smoke-Free" Workplace
Bill 174 also provides protection for home health-care workers against second-hand smoke or vapour. As a result, home health-care workers will be protected from the use in their presence of tobacco, medical cannabis, electronic cigarettes and prescribed products and substances, even in cases where patients will legally be entitled to use the substances. These employees will have the right to leave the employer's premise, unless doing so would present immediate serious danger to the health of any person. For employers, this means that employers should understand in advance which employees may be exposed to the substances in order to avoid an employee leaving a location unexpectedly.
Prohibition Against Smoking While Driving
Another prohibition enacted within the Smoke-Free Ontario Act is a prohibition against smoking tobacco, having lighted tobacco, using an electronic cigarette or having an activated electronic cigarette in the presence of a person who is less than 16 years old, and smoking medical cannabis, having lighted medical cannabis, using an electronic cigarette containing medical cannabis or having an activated electronic cigarette containing medical cannabis while operating a motor vehicle. This prohibition applies to everyone, including employees frequently operating a vehicles even if they have been prescribed cannabis. For commercial drivers, it also means a tightening of the laws surrounding impaired driving under the Highway Traffic Act already in force which include an obligation to surrender their licences upon a positive drug test to any drugs including cannabis and a licence suspension ranging from 3 to 30 days.
The legislation impacting employers the most, the Smoke-Free Ontario Act, has received royal assent but is not yet in force. Employers also should keep an eye on the developments with Bill C -45 at the federal level. The Cannabis Act, the Ontario Cannabis Retail Corporation Act and the Smoke-Free Ontario Act are likely to follow the federal legislation as it develops. We will continue to follow the debates on the upcoming legislative changes.