• Ontario Employers: New Smoking and Vaping Laws Come Into Effect on July 1, 2018
  • June 27, 2018 | Author: Kate Dearden
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • In anticipation of the changing laws regarding cannabis use in Canada, the Ontario government passed Bill 174, Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 on December 12, 2017. Bill 174 provides the framework for regulation of cannabis once it becomes legal in Ontario, including the Cannabis Act, 2017 and the Smoke-Free Ontario Act, 2017 ("SFOA"). While the Cannabis Act, 2017 will not be proclaimed into force until October 17, 2018, when the federal government's legislation, Bill C-45, is proclaimed into force, Ontario proceeded with changes to the smoking laws by proclaiming the SFOA effective July 1, 2018.
    The SFOA replaces the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015, which did not adequately address vaping, e-cigarettes, or cannabis. The SFOA will regulate sale, supply, use, display and promotion of tobacco and vapour products (also referred to as e-cigarettes), and the smoking and vaping of medical cannabis. The Cannabis Act, 2017 will regulate the smoking and vaping of recreational cannabis, which is anticipated to become legalized on October 17, 2018.
    The general prohibition in the SFOA is that no person may smoke or hold lighted tobacco or medical cannabis, or use an electronic cigarette in a "prohibited place." The description of a prohibited place includes an enclosed workplace, enclosed public place, schools, private school buildings and grounds, indoor common areas of condos, apartments, university/college residences, and others. Regulation 268/18 to the SFOA contains further prohibitions on smoking and vaping, including restaurant and bar patios, children's playgrounds, sporting areas and others. The SFOA includes updated prohibitions on smoking, vaping or holding lighted medical cannabis or activated e-cigarettes in motor vehicles.
    There are limited exemptions for medical cannabis users who live in long-term care homes and other facilities, where prescribed conditions are met (e.g. controlled smoking rooms).
    Employers have specific obligations under the SFOA:
    1. Ensure compliance with the prohibitions against smoking or holding lighted tobacco, medical cannabis or using electronic cigarettes in an enclosed workplace, or any "prohibited place" over which an employer has control;
    2. Give notice to employees of prohibitions on tobacco, medical cannabis or use of electronic cigarettes;
    3. Post prescribed signs throughout the enclosed workplace, place or area, including washrooms;
    4. Ensure that no ashtrays or similar equipment remain in the enclosed workplace or place or area, other than a vehicle in which the manufacturer has installed an ashtray
    5. Ensure that a person who refuses to comply with the prohibitions in the SFOA does not remain in the enclosed public place, place or area; and
    6. Ensure that no actions are taken against an employee (e.g., dismissal, discipline, suspensions, penalties, intimidation or coercion, and threats) because the employee acted in accordance with the SFOA or sought enforcement of it.
    Regulation 268/01 contains the specific posting requirements for employers. Employers must post the following at each entrance and exit of the enclosed workplace, place or area in appropriate locations and in sufficient numbers to ensure that employees and the public are aware that smoking and the use of electronic cigarettes is prohibited in the enclosed workplace, place or area:
    1. 1. A sign that is,

    i. at least 10 centimetres in height and at least 10 centimetres in width, and

    ii. a copy of the sign entitled "Tobacco Sign for Employers," dated January 1, 2018 and accessible through a website of the Government of Ontario.

    2. A sign that is,

    i. at least 10 centimetres in height and at least 10 centimetres in width, and

    ii. a copy of the sign entitled "Electronic Cigarette Sign for Employers," dated January 1, 2018 and accessible through a website of the Government of Ontario.

    3. 3. A sign that is,

    i. at least 15 centimetres in height and at least 20 centimetres in width, and

    ii. a copy of the sign entitled "Tobacco and Electronic Cigarette Sign for Employers," dated January 1, 2018 and accessible through a website of the Government of Ontario.

    Next Steps for Employers
    Employers should take the following steps to ensure compliance with the requirements in the SFOA:
    1. Revise an existing policy, or create a new policy, to advise employees that they are required to comply with the prohibitions against smoking or holding lighted tobacco, medical cannabis or using electronic cigarettes in an enclosed workplace, or any "prohibited place" over which the employer has control.
    2. In the policy, advise employees of prohibitions on tobacco, medical cannabis or use of electronic cigarettes in the SFOA. Awareness of the prohibitions will promote compliance, and make it difficult for an employee to later claim they were unaware of the prohibitions.
    3. Post prescribed signs throughout the enclosed workplace, place or area, including washrooms.
    4. Remove ashtrays or similar equipment in the enclosed workplace or place or area, other than a vehicle in which the manufacturer has installed an ashtray.
    5. Advise managers, security or other relevant employees that they should ask anyone who does not comply with the SFOA prohibitions to move from the enclosed workspace, or other place over which the employer has control; and
    6. Monitor for reprisal against any employee who acted in accordance with the SFOA or sought enforcement of it.

    In addition to compliance with the SFOA and the rules around smoking and vaping cannabis, employers will also likely want to address cannabis in the workplace more generally after legalization comes into effect. Cannabis can be treated like alcohol, in that employers can restrict employees from bringing it to work, consuming it, and being impaired on duty. With respect to medical cannabis users and employees with cannabis addiction, policies can refer to the employer's commitment to reasonable accommodation of a disability. Accommodation requires information about the individual employee's disability, and consideration of the options for accommodation.