THE EMPLOYERS' EDGE
Clearing the Smoke: Bill 36 and OHRC Policy Statement provide further direction on managing legalized cannabis
When October 17, 2018 rolled around many employers were still questioning what the rules were around legalized marijuana. A week after the fact, there is additional direction and guidance that all employers should consider as they determine their policy and approach to managing legalized cannabis.
Bill 36 is the Ontario legislation that provides direction on who can buy, who can sell and where you can smoke/use cannabis. The previous Ontario government had proposed legislation to address these questions with the Smoke Free Ontario Act, 2017. However, the new Ontario Government halted this legislation in the summer. It was not until seventeen hours into legalization that Bill 36 and the Smoke Free Ontario Act, 2017 were passed.
Bill 36 allows for a broad scope of places where recreational cannabis can be consumed. Bill 36 allows consumption in locations where smoking tobacco is permitted which includes outdoor public spaces. Previously, it had been anticipated that recreational cannabis would be limited to private use only.
For employers though a key feature of Bill 36 is that smoking or vaping in enclosed public spaces or enclosed workplaces is prohibited. As a result, even without a policy in place employees will be prohibited by law from cannabis use in an enclosed workplace. As a result, a key feature of any workplace policy will be to target and restrict use of marijuana outside the enclosed workplace.
Employers should also review their obligations under the Smoke Free Ontario Act, 2017 which establishes new posting requirements. The signs are not yet available from the Government website. You can review a more detailed discussion of the requirements under the Smoke Free Ontario Act, 2017 in our previous blog, available here.
There still remains uncertainty as to where people will be allowed to smoke. Cities and towns retain the ability to pass by-laws that would further restrict where smoking can occur. Furthermore, cities and towns have until January 22, 2019 to decide if they will ban privately-run marijuana stores from opening within their boundaries.
The Ontario Human Rights Commission (“OHRC”) has also provided guidance to employers with respect to the duty to accommodate and cannabis in its newest policy. Again, there is good news for employers in this policy statement as the OHRC expressly outlines that employers can generally expect employees to be free from cannabis impairment while at work. Employers may wish to rely on this policy to dispel the myth in the workforce that legalization means it is okay to come to work under the influence or to use cannabis at work.
Employers should keep in mind that there are exceptions to this general statement. For example if an employee has a disability that requires medicinal cannabis or can establish addiction to cannabis the duty to accommodate will apply. However, under the Ontario Human Rights Code recreational users of cannabis have no rights – and employers can limit and restrict recreational use of marijuana at work and prohibit impairment. That said, employers are cautioned that as part of the duty to accommodate, employers have a duty to inquire. Accordingly, before proceeding with discipline for cannabis use at work an employer should make sure that the employee is not protected under the Ontario Human Rights Code. Generally, a good approach is to align your cannabis policies with your alcohol policies and approach.
Developing and implementing the necessary policies and practices to manage the workplace effectively with legalized cannabis will take time and expertise. The lawyers at CCPartners would be happy to help you determine what is necessary and effective for your organization.
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