New Posting Requirements for Employers under the Smoke-Free Ontario Act, 2017, Effective July 1, 2018

June 8, 2018

The Smoke-Free Ontario Act, 2017[1] (“SFO”) comes into force on July 1, 2018, repealing and replacing the Electronic Cigarettes Act, 2015[2] and the Smoke-Free Ontario Act[3] (collectively, the “Repealed Acts”). Most notably for employers, the SFO contains new posting requirements for signs and prohibitions regarding the use of medical cannabis.

The SFO expands on the prohibitions of use previously contained in the Repealed Acts. Section 12(1) of the SFO specifically provides that no person shall do any of the following in “prohibited places” (subject to limited prescribed exemptions):

1. Smoke or hold lighted tobacco.
2. Smoke or hold lighted medical cannabis (emphasis added).
3. Use an electronic cigarette.
4. Consume a prescribed product or substance, in a prescribed manner.

The definition of “prohibited places” has remained essentially unchanged, which continues to include an enclosed work place.

With respect to an enclosed workplace over which an employer exercises control, the requirements on employers remain as follows:

1. ensure employees comply with s. 12(1) above;
2. give notice to each employee in the enclosed workplace or other prohibited place;
3. post any prescribed signs with respect to the prohibitions under section 12(1) 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 section 12(1) does not remain in the enclosed workplace or place or area; and
6. ensure compliance with any other prescribed obligations, which includes not taking disciplinary or penalizing action against an employee because they have acted in accordance with the SFO.[4]

However, O. Reg. 268/18 now sets out detailed requirements for posting signs with respect to the prohibitions under s. 12(1). Employers must post both of the signs described in paragraphs 1 and 2 or the sign described in paragraph 3 “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”.[5]

Paragraph 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.

Paragraph 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.

Paragraph 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.[6]

The prescribed signs are not yet available on the Government of Ontario website.[7]

It is important for employers to be aware that failure to comply with the SFO, including the posting requirements, constitutes an offence and can result in fines being levied against the employer.[8] We encourage employers to become familiar with the requirements under the SFO prior to its coming into force on July 1, 2018. Please contact your Koskie Minsky employment lawyer, should you have any questions.

[1] Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3 (“SFO”).

[2] Electronic Cigarettes Act, 2015, S.O. 2015, c. 7, Sched. 3.

[3] Smoke-Free Ontario Act, S.O. 1994, c. 10.

[4] SFO, s. 14(1).

[5] SFO, O. Reg. 268/18 s. 15.

[6] SFO, O. Reg. 268/18 s. 15 (Note: there are specific requirements for retail, hotels, motels and inns).

[7] https://www.ontario.ca/page/government-ontario.

[8] SFO, s. 21(3).

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