Employer Obligations under the Smoke-Free Ontario Act, 2017

Given the upcoming changes to Canadian law to allow for the legal use of recreational marijuana, serious questions about the implications of marijuana in the workplace are beginning to surface.

As a follow up to a previous blog written by Sultan Lawyers PC which demonstrated a recent decision at the Human Rights Tribunal of Ontario stating that employees do not have an absolute right to smoke marijuana in the workplace, it is also important to ponder what  employer obligations are under the Smoke-Free Ontario Act, 2017 (“SFOA”). For more information on this decision please visit Marijuana in the Workplace: HRTO Confirms that there is No Absolute Right to Use At Work.

The Smoke-Free Ontario Act, 2017

With changing laws regarding marijuana use in Canada, the Ontario government passed Bill 174 which provides the framework for the regulation of marijuana/cannabis once it is in fact legal in Ontario. The SFOA and its changes to the smoking laws took effect July 1, 2018, preceding the date of October 17, 2018, when marijuana is anticipated to become legal in Ontario.

The general prohibition in the SFOA, as described in subsection 12(1), is that no person shall smoke or hold lighted tobacco or medical cannabis or use an electronic cigarette in a prohibited place. Under subsection 12(2) of the SFOA for the purposes of subsection 12(1), the prohibited places include:

• An enclosed public place.
• An enclosed workplace.
• A school within the meaning of the Education Act.
• A building or the grounds surrounding the building of a private school within the meaning of the Education Act.
• Any indoor common area in a condominium, apartment building or university or college residence, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
• A child care centre within the meaning of the Child Care and Early Years Act, 2014, whether or not children are present.
• A place where an early years program or service is provided within the meaning of the Child Care and Early Years Act, 2014.
• The reserved seating area of a sports arena or entertainment venue.
• A prescribed place or area, or a place or area that belongs to a prescribed class.

For exemptions to the above prohibited places visit: https://www.ontario.ca/laws/statute/17s26#BK17

Smoking and Enclosed Workplaces

As such, with respect to an enclosed workplace or other place mentioned above, the SFOA has been modified and employers will find themselves with new obligations according to subsection 14(1) of the SFOA:

• Every employer shall, with respect to an enclosed workplace or other place or area mentioned in subsection 12(2) over which the employer exercises control,
  • Ensure compliance with the prohibitions against smoking or holding lighted tobacco, medical cannabis or an electronic cigarette in an enclosed workplace or any prohibited placed;
  • Give notice to each employee in the enclosed workplace or other place or prohibition place in accordance with the regulations;
  • Post any prescribed signs respecting the prohibitions under subsection 12(1) throughout the enclosed workplace, place or area, including washrooms;
  • 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;
  • Ensure that a person who refuses to comply with subsection 12(1) does not remain in the enclosed workplace or place or area;
  • Ensure compliance with any other prescribed obligations; and
  • Ensure that no actions (i.e. dismissal, discipline, suspensions, penalties, intimidation, or coercion and threats) are made against an employee because the employee has acted in accordance with the SFOA or sought enforcement of it.

Posting Requirements

To ensure that employees and the public are aware that smoking is prohibited in the enclosed workplace, place or area, Regulation 268/01 contains the specific posting requirements for employers. Employers are required to post the following at each entrance and exit of the enclosed workplace, place or area in an appropriate location:

1. A sign that is,
   1. at least 10 centimetres in height and at least 10 centimetres in width, and
   2. 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,
   1. at least 10 centimetres in height and at least 10 centimetres in width, and
   2. 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. A sign that is,
   1. at least 15 centimetres in height and at least 20 centimetres in width, and
   2. 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.

It is important for employers to be aware of what next steps to take to ensure compliance with the requirements of the SFOA. These steps include the revision of an existing policy to advise employees of the prohibitions and to advise managerial staff to ask anyone who does not comply with SFOA to move from the enclosed workplace. If you have any questions or would like more information on what your obligations are as an employer, contact Sultan Lawyers PC at 416-214-5111 or here.