Cannabis in the Workplace: Statutory Framework [Video]
Date: September 13, 2018
To understand the potential impact of cannabis on the workplace, employers should be aware of prohibitions and obligations under the applicable statutes. In this video, Jacqueline Luksha describes the statutory framework in Ontario related to cannabis – touching on the Controlled Drugs and Substances Act, the federal Cannabis Act, the Ontario Cannabis Act, 2017, the Smoke-Free Ontario Act, 2017, the Human Rights Code, the Occupational Health and Safety Act, and the Highway Traffic Act.
This video was recorded in August 2018.
Note: On September 27, 2018, the Ontario government introduced Bill 36, the Cannabis Statute Law Amendment Act, 2018. If passed, Bill 36 will make significant amendments to the Cannabis Act, 2017, create the new Cannabis Licence Act, 2018 and will amend various provincial legislation to adjust for the upcoming legalization of recreational cannabis on October 17, 2018. Read our FTR Now for details.
For more information on Cannabis in the workplace, please visit our dedicated Cannabis Topic Page.
Hi, my name is Jacqui Luksha and today I’ll be speaking to you about medical and recreational cannabis and its impact on the workplace.
In understanding cannabis and its potential impact on the workplace it is helpful to look at the statutory framework. As a starting point it is important to understand that the federal government governs the legalization of cannabis and sets general rules surrounding that legalization.
Then, provinces and territories can set rules around the sale of cannabis and can also create added restrictions to the general rules set by the federal government.
Focusing on Ontario, the following statutes are the most important to keep in mind for October:
Controlled Drugs & Substances Act
Medical cannabis has been legal since 2001. Its use will continue to be governed by regulations to the Controlled Drugs & Substances Act.
Federal Cannabis Act
The federal Cannabis Act will come into force on October 17, 2018. It will legalize the consumption of recreational cannabis. The stated purpose of the federal Cannabis Act is to:
- keep cannabis out of the hands of youth
- keep profits out of the hands of criminals
- protect public health and safety by allowing adults to access safe, legal cannabis
The federal Cannabis Act:
- controls and regulates the production, distribution and sale of cannabis
- it also establishes product safety and quality
- prevents young persons (generally defined as those under 18 years old) from accessing cannabis
- it creates strict penalties for any criminal activity in relation to cannabis
- and it also allows people to possess 30 grams of cannabis and have four home-grown plants per residence
Ontario Cannabis Act
The Ontario Cannabis Act, 2017 is expected to come into force at the same time as the federal Cannabis Act.
The Ontario Cannabis Act:
- establishes prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis in Ontario
- it states that persons under 19 years of age are prohibited from possessing, consuming, purchasing or attempting to purchase cannabis
- it prohibits consumption of cannabis in
- public places
- a workplace within the meaning of the Occupational Health and Safety Act
- a vehicle or boat
- or any prescribed place – and there are a number of prescribed places in the regulations, including but not limited to schools, indoor common areas of certain multi-dwelling buildings, child care centres, and others
There may be exceptions for persons who consume cannabis for medical purposes, subject to any prohibitions or restrictions under the new Smoke-Free Ontario Act, 2017 and its regulations.
Under the Ontario Act, there are also strict penalties for non-compliance and significant fines. There is also a risk of imprisonment for a term of not more than one year, or both,
Smoke-Free Ontario Act, 2017
The new Smoke-Free Ontario Act, 2017 will be in force once proclaimed in effect by the government at a future date.
It applies to:
- tobacco in any processed or unprocessed form that may be smoked, inhaled or chewed, including snuff, but not to products intended for use in nicotine replacement therapy
- it also applies to medical cannabis
- vapour products, and
- prescribed products and substances (although none have yet been prescribed under the new Act)
The new Smoke-Free Ontario Act states that no person shall:
- smoke or hold lighted tobacco
- smoke or hold lighted medical cannabis
- use an electronic cigarette, or
- consume a prescribed product or substance in a prescribed manner, in a prohibited place (this is subject to exceptions)
“Prohibited places” remain substantially the same and include, among other things:
- enclosed public spaces (as defined)
- enclosed workplaces (as defined)
- schools (within the meaning of the Education Act)
- indoor common areas of university or college residences, and
- other prescribed places
Certain exemptions exist for residential facilities, hotels, motels or inns, scientific research and testing facilities or hospices. The new Smoke-Free Ontario Act also places prohibitions on smoking tobacco, holding lighted tobacco and medical cannabis, as well as other restrictions while in a motor vehicle. The new Act also places certain obligations on employers to enforce the Act and to impose certain prohibitions.
Ontario Human Rights Code
The Human Rights Code of Ontario offers protection for persons with disabilities. There may be a legal obligation to accommodate the use of medical cannabis; there is no similar obligation to accommodate the use of recreational cannabis – absent an addiction.
Occupational Health and Safety Act
Under the Occupational Health and Safety Act (OHSA), employers have a duty to take every reasonable precaution in the circumstances to protect a worker. Workers have a duty not use or operate any equipment, machine, device or thing, or work in a manner that may endanger himself, herself or any other worker.
There is a balancing of interests under the Act. Remember: the Cannabis Act has prohibited the consumption of recreational cannabis in the workplace as defined by the OHSA. This is a very broad definition.
Highway Traffic Act
The Highway Traffic Act and its recent amendments will have significant impact on those employers who rely on driving in the course of their business. Starting July 1, 2018, commercial drivers will be prohibited under the Act from having any presence of cannabis in their system while operating a vehicle requiring an A-F class licence. This is a zero tolerance policy. Cannabis will be screened by police using an oral fluid screening device. This is particularly significant for those whose business relies on commercial drivers.
Overall, the legislation of cannabis in October will have significant impact on the various workplace-related legislation. Employers need to be aware of what is prohibited in these statutes, and where they have a positive obligation to act.
Thanks for listening and if you have any questions about cannabis in the workplace, please feel free to contact us.
The content in this video provides general information and should not be relied on as legal advice or opinion. This footage is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©