CANNABIS IN THE HOSPITALITY INDUSTRY Bill 36: The Cannabis Statute Law Amendment Act 1
Bill 36: The Cannabis Statute Law Amendment Act CANNABIS IN ONTARIO On Wednesday October 17, 2018, the Province of Ontario officially legalized the use of recreational cannabis. The has prepared the following information package on the legalization of cannabis and how it may impact the workplaces of ORHMA s members. The subsequent information will provide an overview of the following: The Federal Cannabis Act Retail Stores Regulation and Enforcement Cannabis Rules (Including the use of Cannabis in Hotel Guest Rooms and Restaurants & Bars) The Implications for Employers Questions and Answers on Cannabis and Ontario s Human Rights Code Next Phase on Cannabis Legislation Disclaimer: This presentation on Ontario s Cannabis implementation provides members of the Ontario Restaurant Hotel & Motel Association (ORHMA) with general information and should not be relied on as legal advice or opinion. Should you require further assistance, please contact the ORHMA office at info@orhma.com. FEDERAL CANNABIS ACT The Cannabis Act was introduced on April 13, 2017 by the federal government and came into effect on October 17, 2018. The Cannabis Act legalized the recreational cannabis or marijuana use and Canadians aged 19 or older will now be able to buy, possess, use and grow recreational cannabis. In Ontario, individuals will be able to have a maximum of 30 grams (about one ounce) of dried cannabis in public at any time. Provincial laws generally permit cannabis use wherever laws permit tobacco use. Cannabis use for a medical purpose (medical cannabis) continues to be legal. RETAIL STORES Private Retail Private cannabis retailers should be licensed by the Alcohol and Gaming Commission of Ontario (AGCO) The Ontario Cannabis Retail Corporation (OCRC) would be the exclusive wholesaler and online retailer of cannabis in the province of Ontario. 2
Municipalities would be able to pass a council resolution by January 22, 2019 to opt-out of retail stores. Municipalities that opt-out of cannabis retail stores could allow them in the future, but municipalities that do not opt-out of stores by January 22nd, cannot opt-out of them at a later date First Nation communities would be able to opt-out of cannabis deliveries and retail stores. Proposed legislation, if enacted, would support this direction with the intent of enabling the AGCO to begin to accept applications in December 2018. RETAIL LICENSING Retail Licensing Framework The proposed retail licensing framework would not cap the total number of licenses or authorizations. It would enable ownership concentration limits for private retailers to be established by regulation in advance of December 2018 following appropriate consultation. The framework would also prohibit the sale or transfer of licences, permit licensed producers to operate a single store at a single production facility in Ontario, per company, including all affiliates and would require authorized retailers to display the cannabis retailer seal and create new offences for false representations as an authorized cannabis retailer. Store Operating Parameters & Distance Buffers Additional store operating parameters (e.g. store format, security requirements, staff training requirements) would be established by regulation or by AGCO Registrar s standards and requirements subject to additional consultation and before the AGCO begins accepting applications in December 2018. A distance buffer between private cannabis retail stores and schools would be set through regulation in advance of December 2018 following further consultation with municipalities and key stakeholders. Vapour Product Rules Rules for the display and promotion of vapour products would be separate from the display and promotion rules for tobacco products and tobacco product accessories. Any seller of vapour products could display and promote products subject to restrictions outlined in the federal Tobacco and Vaping Product Act. There would be no additional provincial restrictions. Specialty vape stores would be permitted to let customers sample vapour products within the store, subject to certain conditions. Next Steps Under legislation, regulations would be developed to enable the AGCO to accept applications in December 2018. Municipalities would have the opportunity to opt out of retail stores by January 22, 2019. The government will continue to consult on further details to enable private retail stores by April 1, 2019. 3
Ability to purchase it online from the Ontario Cannabis Retail Corp. as of Oct 17 th 2018. Wait until April to buy it in person at a physical store, set to open in Ottawa in April 2019 unless the new city council opts out. REGULATION AND ENFORCEMENT Ontario Cannabis Retail Corporation (OCRC) The OCRC will be the exclusive online retailer for legal cannabis in Ontario. Consumers 19 and older will be able to purchase cannabis via OCRC s online retail platform. Online sales would be implemented in a socially responsible manner, including secure home delivery with age verification at the customer s door, and no packages left unattended at the door. The OCRC would also be the exclusive wholesaler to future private retail stores. Provincial Regulator AGCO s Role The Alcohol & Gaming Commission of Ontario (AGCO) can issue a Retail Operator Licence after investigation (i.e. due diligence) into the business. AGCO can issue a Retail Store Authorization to a licensed Retail Operator for the operation of a specified retail store after a local public notice process (administered by the AGCO), and upon confirmation of meeting certain requirements (e.g. safety and security plans in place). They can also issue certain individuals a Cannabis Retail Manager Licence and conduct compliance and audit processes, including store inspection prior to opening. Issuing Retail Licences Considerations AGCO will consider the following, among other things: whether the applicant has been convicted or charged with any cannabis-related offences the public interest, having regard to the needs and wishes of the residents of the municipality, and written submissions that are provided by the municipality and its residents regarding the needs and wishes of the community Enforcement Police: To enforce drug-impaired driving. Municipal: City enforcement can help out by enforcing city bylaws 4
Alcohol and Gaming Commission: To enforce retail compliance, including, if necessary, revoking licences from stores that fail to comply and provide notices of applications to run a pot shop would be posted on the AGCO website and at the proposed physical location, similar to the process for would-be bars. CANNABIS RULES Places of Use Smoking cannabis (medical and recreational) is prohibited in the same places where the smoking of tobacco is prohibited (e.g. enclosed public places, enclosed workplaces, and other specified places). The vaping of cannabis would be captured by existing provisions in the Smoke-Free Ontario Act, 2017 that will regulate the use of an electronic cigarette. All methods of consuming cannabis (e.g. smoking, vaping, ingestion) would be prohibited in vehicles and boats that are being driven or under a person s care or control, subject to certain exceptions that would be prescribed by regulation (e.g. use of medical cannabis edibles by a passenger who is a medical cannabis user). Municipalities could pass by-laws further restricting the use of cannabis. Smoking & Vaping Rules Smoking & Vaping Rules apply similarly to the Smoke-Free Ontario Act (SFOA). 5
Cannabis in Hotel Guest Rooms The Cannabis Act, 2017 and its supporting regulations, will permit registered guests or invited guests of registered guests to use recreational cannabis in a hotel, motel or inn room, provided the room is primarily designated as a sleeping accommodation and the cannabis is not being smoked or vaped. Edible consumption of cannabis products are allowed. The smoking or vaping of recreational cannabis in a hotel, motel, or inn room will only be permitted for registered guests or invited guests of registered guests if the room is the room is designated as a smoking room, and other conditions which align with the Smoke-Free Ontario Act are met. If you allow smoking in your hotels in a designated room it is understood you will allow guests to smoke and or vape cannabis in that room. Tourists will also be subject to these same rules. Any hotel that wishes to set a total prohibition on cannabis will need specific policies and are advised to see their legal counsel. Cannabis in Restaurants and Bars The use of Cannabis in Restaurants and Bars is not permitted. One is not able to smoke in restaurants and on bar patios or public areas within 9 metres of a patio. If the AGCO finds evidence of smoking cannabis in a licensed establishment the matter will be referred to the municipal authorities responsible for the enforcement of the Smoke Free Ontario Act ( Local Public Health) and no infraction will be cited. IMPLICATIONS FOR EMPLOYERS Rules beyond SFOA will require employers to develop internal policies as in restrictions for non-enclosed workspaces or outdoor areas. Policies are important in order to prevent impairment in the workplace and support health and safety practices at work. Employer s Responsibilities An employer must: Understand the cannabis rules Provide management training Include reasonable suspicion training Ensure that safety is a priority while accommodating employees Update policies in areas such as employee guides and practices and hazard assessments to include potentially cannabis being an impairment and ability to work 6
address areas of employees not disclosing information when safety can be at risk Intoxication is intoxication whether from alcohol or drugs including cannabis. Employers are to ensure employees are aware of zero tolerance for impairment rules and that consuming recreational cannabis in the workplace is illegal. Guests and Patrons It is imperative that guests and patrons of an establishment understand the cannabis rules. Safety must be a priority. An establishment should update drug and alcohol policies to include cannabis. Intoxication is intoxication whether from alcohol or drugs including cannabis and there zero tolerance from impairment. QUESTIONS & ANSWERS ON CANNABIS AND ONTARIO S HUMAN RIGHT CODE Canadian Human Rights Commission Impairment can be described as a diminished ability to fulfill or remain focused on a task. The Canadian Human Rights Commission description on the appearance of impairment at work is: The odour of alcohol at work. Glassy or red eyes Unsteady gait, slurring, poor coordination Plus from a number of factors that are temporary or short-term, besides substance use, such as family or relationship problems, fatigue, physical or traumatic shock or medical conditions and treatments. Do the new cannabis laws change how the Human Rights Code or OHRC policies are applied? No. The Code and OHRC policies still apply in the same way they do for other drugs. Like other drug use, the Code protects people with disabilities who use cannabis for a medical purpose from discriminatory treatment, including harassment, in employment, housing and service delivery. The Code also prohibits discrimination against people who have or are perceived to have an addiction to cannabis based on the ground of disability. It also protects people with disabilities affected by cannabis smoke or vapour. These groups have the right to disability-related accommodation to the point of undue hardship, that is, significant health and safety risks or excessive costs. What about edible cannabis? An employee can consume edible cannabis for a medical purpose related to a disability at work, as long as it does not interfere with health and safety or performance of essential job duties. 7
What if cannabis use for a medical purpose causes impairment at work? Similar to alcohol and other drugs, employers can require employees to be free from recreational cannabis impairment at work. Impairment at work from cannabis use related to a disability may also be prohibited if it interferes with health and safety or performance of essential job duties. Tribunals and courts have confirmed that employers can prohibit impairment from cannabis use for a medical or other purpose at work in safety-sensitive jobs. Does the duty to accommodate extend to cannabis? Yes. Organizations still have a legal duty to accommodate the disability-related needs of people who use cannabis for a medical purpose unless it would cause undue hardship that is, significant health and safety risks or excessive costs. The duty to accommodate also applies to people who are addicted to cannabis, or are affected by cannabis smoke or vapour because of a disability. The duty to accommodate does not apply to recreational cannabis use. Does the duty to accommodate cannabis use for a medical purpose still apply if the employee is in a safety-sensitive job? It would likely amount to undue hardship to allow any employee, regardless of a disability or addiction, to be impaired by cannabis while doing safety-sensitive jobs like operating heavy machinery. However, in these situations an employer must first try to reduce risks, and may need to change some job duties or offer alternative work to accommodate someone who uses cannabis for a medical purpose related to a disability. Someone with a cannabis addiction might need an employee assistance program (EAP), time off to attend a rehabilitation program or have access to other job-related supports. Do people have to show medical authorization for cannabis use or disclose the nature of their disability? The person seeking accommodation may need to provide medical or other information to support a disability-related need, but also has a right to privacy as much as possible. An organization does not generally have the right to know the nature of the person s disability or their treatment. However, a doctor s note verifying that cannabis use related to a disability is not interfering with fitness for work or other duties might be necessary for accommodation in some situations, particularly in safety-sensitive environments. Medical or other information might also be necessary to support accommodation needs when cannabis use negatively affects people with other disabilities. Everyone is expected to cooperate in the accommodation process. 8
What if an employee is unable to ask for accommodation? Some employees may be reluctant or unable to recognize or disclose that they have disability-related accommodation needs. Employers have a duty to inquire where an employee is clearly unwell and is known to have, or perceived to have, disability needs related to cannabis use for a medical purpose or cannabis addiction. However, an organization might not be expected to accommodate a disabilityrelated need if the person does not participate in the accommodation process. Can an employer insist on a drug test for cannabis in safety-sensitive positions? It depends. An employee drug-testing program might be justified for safety-sensitive positions in some circumstances. Drug tests typically screen for cannabis. Drug testing has particular human rights implications and must be designed in a way that makes sure testing does not discriminate against people who use cannabis for a medical purpose related to a disability, or who have, or are perceived to have, a cannabis-related addiction disability. Employers can drug test for cause, for post-incident or post-reinstatement situations. Random testing might be permissible under the Code if employees are in safety-sensitive positions, staff supervision is minimal or non-existent, and there is evidence of risk in the particular workplace such as a general problem with substance abuse. Can an employer insist on a drug test for cannabis in safety-sensitive positions? The technique used to test for drugs must be highly accurate, able to measure impairment at the time of the test, minimally intrusive and provide rapid results. It is more difficult to measure impairment through drug testing. To date, the scientific research has not confirmed that a method of drug testing exists that is analogous to the alcohol breathalyzer in meeting this criteria. Employers have a duty to accommodate the needs of people with disabilities who test positive for drugs, to the point of undue hardship. See the OHRC s Policy on drug and alcohol testing for more information. Can an employee be fired for using cannabis at work, failing a drug test, or refusing to ask for help? Employers should offer assistance and accommodation before imposing consequences when an employee is unable to do the essential duties of their job, they come to work impaired, or they fail a drug test, due to cannabis use for a medical purpose related to a disability, or due to cannabis addiction. Workplace policies that automatically discipline people for not coming forward and disclosing cannabis use for a medical purpose or cannabis addiction may be discriminatory. Employers should routinely inform employees who work in safety-sensitive positions about the need to disclose if they are using a drug that could lead to on-the-job impairment and to ask for disability-related accommodation before harmful incidents happen. 9
Employees who use cannabis for a medical purpose, or have a cannabis addiction, should discuss with a doctor any concerns about fitness for work and negative effects on workplace health and safety or performance of essential duties. Can residents smoke cannabis in their apartment or condo unit? Generally yes. People can smoke, vape or consume edible cannabis in their residential units and balcony or terrace either for medical or recreational purposes, except where laws or rules prohibit smoking or vaping cannabis and tobacco for public health reasons. Ontario prohibits smoking or vaping cannabis for either purpose in common areas of apartment and condo buildings. Residents can consume edible cannabis for a medical purpose related to a disability anywhere on the premises of their residential building. What happens if cannabis smoke from other units affects people with disabilities like asthma? Smoke or vapour from recreational or medical cannabis might negatively affect other building residents, including people with chemical sensitivities and other disabilities. Housing providers have a legal duty to look for solutions and accommodate the disability-related needs of people who use cannabis for a medical purpose related to a disability, as well as of other people with disabilities who are affected by cannabis smoke or vapour, unless it would cause undue hardship. All parties have an obligation to cooperate in the process of finding solutions. Can a landlord or condo board ban smoking in residential units, balconies and terraces? Yes. There are no laws against banning cannabis smoking or vaping in units, balconies or terraces. However, a housing provider would still have a duty to accommodate a person who smokes or vapes cannabis for a medical purpose related to a disability, unless it would cause undue hardship. A rule that permits residents to smoke or vape tobacco in their units and balconies but prohibits cannabis use for a medical purpose related to a disability might violate the Code. Can people who live in a retirement or long-term care home or psychiatric facility smoke or vape cannabis for a medical purpose in their units? No. People living in these types of residential institutions cannot smoke or vape medical or recreational cannabis in their units. Ontario allows, but does not require, a separate common room for smoking or vaping cannabis or tobacco in these types of residential institutions. The room must be constructed and ventilated in accordance with government regulations. Residents in these types of institutions can consume edible cannabis for a medical or recreational purpose anywhere on the premises. 10
Can people smoke or vape cannabis for a medical purpose while in hospital? No. Ontario prohibits people from smoking or vaping cannabis for a medical or recreational purpose while in hospital. Patients might be able to consume edible cannabis under a doctor s orders. Can people smoke, vape or use edible cannabis for a medical purpose in a hotel room? Yes. Similar to tobacco, people can smoke or vape cannabis for a medical or recreational purpose but only in guest rooms designated by the hotel, motel or inn. The guest room must conform to any prescribed government regulations including the posting of signage. People can consume edible cannabis for a medical purpose related to a disability anywhere on the premises. Can children and youth smoke, vape or consume cannabis for a medical purpose? Yes, but only if a doctor authorizes cannabis use for a medical purpose for a child or youth in accordance with professional medical standards. Can students use cannabis for a medical purpose at school? Ontario prohibits smoking or vaping cannabis for a medical or recreational purpose anywhere on school premises. Students can consume cannabis for a medical purpose related to a disability in edible form while at school. Can people smoke or vape cannabis for a medical purpose in a restaurant, retail store, mall or other service centre? No. Like tobacco, Ontario prohibits smoking or vaping cannabis for a medical or recreational purpose in enclosed public places like restaurants, retail stores, malls or other service centres. People can carry cannabis and consume edible cannabis for a medical purpose related to a disability in enclosed public places. Can people smoke cannabis for a medical purpose outside in public spaces like in a park or on a sidewalk? Yes. People can use cannabis for a medical or recreational purpose in many outdoor public places, except where laws or rules prohibit smoking or vaping cannabis and tobacco for public health reasons. People can carry cannabis and consume edible cannabis for a medical purpose related to a disability in outdoor public places. 11
What can organizations do to effectively meet their obligations? Organizations should review their existing policies and practices, or develop new ones, to make sure everyone understands their rights and obligations relating to cannabis use and the Human Rights Code. Organizations should accept disability-related accommodation requests in good faith and act promptly. Do the new laws mean employees can smoke or vape cannabis for a medical purpose in an enclosed workplace? No. Like tobacco, Ontario prohibits smoking or vaping cannabis for a medical or recreational purpose in enclosed workplaces. Employers may have a duty to accommodate employees who smoke or vape cannabis for a medical purpose related to a disability by allowing them breaks to go outside to spaces where smoking or vaping is permitted by law. WHAT S TO COME Cannabis legislation for provide lounges Cannabis edibles ORHMA s POSITIONING ORHMA strongly believes in an opportunity of allowing members to voluntarily allocate designated smoking rooms in their hotels, motels, other accommodation to enhance tourism. ORHMA also recognizes the opportunity for designated licensee lounges to be permitted to sell and possess on-site consumption of legal cannabis. Each business would need to address this according to their customers needs in order to proactively enhance the guest experience in the hospitality industry across Ontario. It is important to ensure that Ontario stays competitive to other provinces and that Ontario s provincial regulations do not put the hospitality industry at an economic disadvantage. Ontario s hotel bookings, conferences, conventions and other economic opportunities would be at a disadvantage if other provinces permit legal cannabis consumption in these locations while Ontario does not. Ontario s hospitality industry requires the flexibility to sustain and grow hotels, motels, accommodation spaces and restaurants. 12