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For employers subject to Quebec laws and dealing with the upcoming legalization of cannabis, here is a reminder about some of your obligations in matters of work health and safety

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Labor and employment law, Civil and commercial litigation

With the imminent legalization of cannabis for personal, recreational use, which is scheduled for October 17, 2018, employers operating a business subject to the laws of Quebec should, in our opinion, be very interested even before that date, in considering their obligations in matters of work health and safety in the workplace where they operate a business.

If there have not already done so, such employers should, before October 17, 2018, become familiar with certain provisions of law, some of which are already in force and others of which will soon come into force. These provisions of law will structure certain aspects of work health and safety within a Quebec-based workplace, and we would like to now identify for you certain of these provisions of law.


Civil Code of Quebec

It is useful to keep in mind that the Quebec legislator has provided, in section 2087 of the Civil Code of Quebec, that the employer must take measures consistent with the nature of the work to protect the health, safety and dignity of its employees.

Furthermore, in section 2088 of Civil Code of Quebec it is provided that an employee must perform his work with prudence and diligence.

An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions (2018, chapter 19 - assented to June 12, 2018)

On June 12, 2018, the legislator adopted Bill 157, An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions (2018, chapter 19, assented to June 12, 2018). The principal dispositions included in this bill will enter into force at a date to be determined by the government. 

Several sections of Bill 157, assented to last June 12, touch on aspects of work health and safety including:

1)       Section 19 of Bill 157 enacts a new law, the Cannabis Regulation Act which, in section 12, first paragraph, subsection 15, prohibits cannabis smoking in an enclosed space in a workplace, except for workplaces situated in a private residence;

2)       Section 12, first paragraph, subsection 16 of the new Cannabis Regulation Act prohibits cannabis smoking in all means of shared transportation (that is, mass transportation) as well as other means of transportation used in the course of employment.

3)       Section 18 of the new Cannabis Regulation Act obliges the operator of a workplace other than a workplace situated in a private residence, as well as the operator of a means of shared transportation or of other means of transportation used in the course of employment, not to tolerate that any person smokes cannabis in a place that is under the responsibility of the operator, or where smoking cannabis is prohibited. The operator is also obliged to exercise due diligence and to take all necessary precautions to prevent any person from smoking cannabis in an area for which the operator is responsible or where smoking cannabis is prohibited.

 4)       Section 101 of the new Cannabis Regulation Act amends the Act respecting occupational health and safety (chapter S-2.1) to insert a new section after section 49, the new section 49.1 of the Act respecting occupational health and safety, the text of which follows hereafter:

 “49.1 A worker must not perform his work if his condition represents a risk to his health, safety or physical well-being or that of other persons at or near the workplace by reason, in particular, of his being impaired by alcohol, drugs, including cannabis, or any similar substance.

On a construction site, the condition of a worker who is impaired by alcohol, drugs, including cannabis, or any similar substance, represents a risk for the purposes of the first paragraph”

5)       Section 102 of the new Cannabis Regulation Act amends the Act respecting occupational health and safety act (chapter S-2.1) to insert, after section 51.1 of that act, the new section 51.2, the text which follows hereafter:

“51.2 The employer must see to it that a worker does not perform his work if his condition represents a risk to his health, safety or physical well-being or that of other persons at or near the workplace by reason, in particular, of his being impaired by alcohol, drugs, including cannabis, or any similar substance.

On a construction site, the condition of a worker who is impaired by alcohol, drugs, including cannabis, or any similar substance, represents a risk for the purposes of the first paragraph”

 

Québec Charter of Human Rights and Freedoms

Article 10 of the Quebec Charter of Human Rights and Freedoms, as enacted by the Quebec legislator, provides that a person cannot be the subject of discrimination because of a handicap.

Our understanding of the current state of the jurisprudence regarding interpretation of section 10 of the Charter of Human Rights and Freedoms is that the notion of “handicap” may include dependence on cannabis and, by that fact, an employee who demonstrates cannabis dependency can assert that the employer has an obligation to make accomodations for the employee, as long as the accomodations are not an excessive burden on the employer.

Furthermore, we must also remember that section 5 of the Charter of Human Rights and Freedoms provides that every person has the right to respect for his private life. Therefore, any employer operating a business in Quebec who is considering imposing random drug testing on any, some or all of its employees could violate the right to respect of the private life of its employees, except in very specific cases.

 

Criminal Code

The Canadian legislator has provided, in section 217.1 of the Criminal Code that everyone who directs work or the performance of a task, or who has the authority to do so, must take reasonable measures to prevent bodily harm to any other person.

Any failure to respect the duty provided under section 217.1 of the Criminal Code may result in the violator of that duty being charged, in certain circumstances, with infractions under the Criminal Code such as, for example, being charged with criminal negligence as provided in section 219 of the Criminal Code.


Conclusion

As you can see, the preceding text is only a brief overview of certain obligations in matters of work health and safety that are imposed upon employers operating a business subject to the laws of Quebec. This text should in no way be considered as a complete or exhaustive compilation of such obligations.

Therefore, all such employers have a pressing interest to quickly consult their lawyer (if there have not already done so) not only to understand their obligations regarding cannabis consumption in the workplace, but also to know what they must do or what they should have a pressing interesting in doing before October 17, 2018, including, just as an example, creating a policy regarding cannabis consumption at work so that, at all times, they would be able to establish that they have acted with due diligence to prevent cannabis consumption in the workplace or where they operate their business.

Finally, for more complete information, do not hesitate to contact us.

 

Me Yves Paquette, Attorney-at-Law

Alepin Gauthier Avocats Inc.

 

This text contains legal information of a general nature and should not replace legal advice obtained from a lawyer who will consider your particular situation.

For employers subject to Quebec laws and dealing with the upcoming legalization of cannabis, here is a reminder about some of your obligations in matters of work health and safety
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