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27 June 2018
While the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') brought changes to the Employment Standards Act 2000, employers should be aware of additional legislative changes in Ontario that may affect them. On December 12 2017 the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act 2017 (known as 'Bill 174') received royal assent. However, some of the acts enacted under the bill are not yet in force.
Bill 174 is omnibus legislation enacting:
The bill also makes amendments to the Highway Traffic Act.
Altogether, Bill 174 serves as the provincial framework in anticipation of the enactment of federal legislation relating to the cultivation, sale, distribution and consumption of cannabis,(1) which is currently at its second reading in the Senate.
Prohibition on the use of products
Bill 174 provides that the following will be prohibited in several locations, including enclosed workplaces:
The use or consumption of recreational cannabis will be prohibited in any public place or workplace, and will remain confined to private premises or locations.
The obligation to enforce the prohibition will lie with employers. Employers' obligations will include:
More specifically, the Smoke-Free Ontario Act provides that regulations may be enacted to deal with employee complaints regarding the failure of an employer to enforce the prohibition and respect its obligations. The extent to which the complaint process will be dictated by legislation, if at all, remains to be seen.
Right to a smoke-free workplace
Bill 174 also provides protection for home healthcare workers against second-hand smoke or vapour. As a result, home healthcare workers will be protected from the use of tobacco, medical cannabis, electronic cigarettes and prescribed products and substances in their presence, even in cases where patients are legally entitled to use the substances. These employees will have the right to leave the employer's premises, unless doing so would present immediate serious danger to the health of any person. Employers should understand in advance which employees may be exposed to these substances, in order to avoid an employee having to leave a location unexpectedly.
Prohibition against smoking while driving
The Smoke-Free Ontario Act also prohibits 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 who frequently operate vehicles, even if they have been prescribed cannabis.
The legislation affecting employers the most, the Smoke-Free Ontario Act, has received royal assent but is not yet in force. Employers should also keep an eye on 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.
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