A new meaning for 4.20?
Coffee retailer Second Cup announced in April that it was going to be investing in marijuana dispensaries. With that announcement, one could be forgiven for thinking that Vancouver style coffee shops may soon turn into Amsterdam style “coffee shops.” Indeed, the province’s public consultation showed that British Columbians want marijuana smoking establishments like those in Amsterdam. But will they be permitted?
Smoking tobacco in bars, restaurants, and coffee shops was prohibited in 2001 when WorkSafeBC amended the Occupational Health and Safety Regulation. This was done to protect workers in those premises from second hand tobacco smoke, and applied to all workplaces indiscriminately. What this meant was that even smoking on restaurant patios or other outdoor workplaces was prohibited.
However, that prohibition never applied to marijuana. The province signaled its intention to close that gap with the recent release of Bill 30 – Cannabis Control and Licensing Act. Bill 30 includes a prohibition on smoking and vaping in workplaces, but is not as strict as WorkSafeBC’s prohibition on tobacco. The new prohibition only applies to workplaces that are “fully or substantially enclosed within the meaning of the regulations.” Further, Bill 30 restricts smoking or vaping within a “prescribed distance” from doorways or other air intakes into workplaces.
Interpreting exactly what the above means will depend on the yet to be released regulations. Some insight may be taken from the Tobacco and Vapour Products Control Regulation, which defines “fully or substantially enclosed” as meaning a structure with a roof and half or more of the wall space covered. The prescribed distance is six meters (or 20 feet). If these same definitions are used for Bill 30 it would appear that marijuana will be permitted in some workplaces, such as a patio area 20 feet or more from air intakes.
One reason to be cautious in interpreting Bill 30 is that WorkSafeBC operates and regulates largely independent from the provincial government. When the province regulated e-cigarettes in workplaces, WorkSafeBC nonetheless stepped in with its own provisions. Similarly, tobacco is regulated under both the province’s Tobacco and Vapour Products Control Regulation and WorkSafeBC’s Occupational Health and Safety Regulation.
In January of this year – well before the release of Bill 30 – WorkSafeBC indicated that it was not amending its Regulation to respond to legalization of marijuana. Instead, WorkSafeBC pointed to the ironically numbered section 4.20 of the Regulation as sufficient. This section prevents impaired individuals remaining in the workplace, but it is only triggered when the level of impairment is sufficient to create an undue risk to workers. In other words, it is not a prohibition on exposing workers to marijuana smoke. With the release of Bill 30, what remains to be seen is whether WorkSafeBC will now amend the Regulation to specifically address smoke exposure, similar to tobacco.
All of the above shows the uncertainty ahead for businesses. It is an uncertainty that is inevitable when a century old federal prohibition is lifted on what will largely be a provincially regulated area of business. It is an uncertainty exacerbated by British Columbia’s delay in getting out the regulatory gate. Even with Bill 30 much is left to regulation, and other regulatory bodies such as WorkSafeBC may still enter the field. Employers looking to enter the marijuana business will need to stay up to date. One amendment may be all it takes for an investment to go up in smoke.
Graeme Hooper is a litigator with Ascendion Law; his practice areas include matters before WorkSafeBC.