Canada: A Cannabis Workplace Legal Development To Note

As the Province of British Columbia continues to churn through the hundreds of retail cannabis license applications, there are a host of new requirements coming into force that govern BC employers operating in the retail cannabis space.

The Worker Qualification Regulation (the "Regulation") was enacted pursuant to the Cannabis Control and Licensing Act (the "Act") and sets standards for the qualifications, security screening, supervision and record-keeping requirements regarding retail cannabis store employers.

New Requirements

As announced by the Province of British Columbia on November 9, 2018, effective November 30, 2018, all employees working in (licensed) retail cannabis businesses in BC must:

  • be at least 19 years of age;
  • produce identification for inspectors if asked while working;
  • provide personal updated contact information to the Province;
  • pass a training program; and
  • become "qualified" under the Regulation and provide a copy of his or her qualification letter to his or her employer.

Among other requirements under the Regulation, employers licensed under the Act must:

  • ensure that anyone working in the retail store, either as an employee, independent contractor or volunteer, has been qualified under the Regulation;
  • keep a copy of their workers' qualification letters; and
  • have the qualification letters available for inspectors or Community Safety Unit officers.

Exceptions

While the Regulation only covers those working "in" a retail store, section 3 of the Regulation permits the "General Manager" (a position designated under the Act to administer the Act) to impose terms and conditions that apply to one or more retail store licenses and prohibit an individual from working outside the store in a designated position unless the individual has undergone security verification under the Regulation and such verification has not been revoked.

Additionally, the Regulation does not apply to individuals with a valid security worker license under the Security Services Act and who are working in that field, even if in a retail cannabis store (i.e. providing security services).

Trade workers who come in to repair, maintain, inspect or construct "something in a retail store" (or who provide a service other than those provided employees who are required to be qualified under the Regulation) must supervised by a store manager or supervisor while in the store.

Qualification

What is meant by "qualification"? It isn't spelled out in the Regulation, but is understood to involve primarily a detailed security verification application and security screening. The Province also announced on November 9, 2018, that applicants will be required to 'pass' a training program, suggesting an examination will be included in the qualification process, though the Regulation is silent on training and the Province has not provided any further information at this time.

Regarding the security qualification process, all workers seeking a security verification must provide their name, previous names, date of birth, driver's license number, home and mailing address, email addresses, phone numbers, and a list of addresses at which applicants have lived over the past 5 years, whether the applicant has been arrested, charged or convicted under the Narcotic Control Act and a consent for the "Security Manager" under the Act to conduct further investigations and reference checks as part of the security "screening" process.

As part of the security "screening" process, applicants must declare whether they have been arrested, charged, or convicted under the Criminal Code or any Canadian cannabis legislation or regulations and the Security Manager is authorized to undertake a broad variety of background, reference and police checks on both the individual applying for the qualification and "associates" of that individual. "Associate" is defined under the Regulation as "a person that, in the security manager's opinion, may have direct or indirect influence over the individual". Successful applicants must pass a security screening every two years to maintain their qualification.

Qualification is available by online application to those workers eligible for a BC Services Card (residents of BC). Non-BC residents may seek an application Worker Qualification Form by emailing the Liquor and Cannabis Regulation Branch.

The Fee

Applicants for qualification under the Regulation must pay a $100 application fee, though licensees and license applicants can pay the fee for workers, if they so wish.

Monetary Penalties

Employers who breach their obligations under the Regulation face the following monetary penalties and periods of license suspension:

For failing to ensure a worker in a retail store has the necessary security verification:

  • First Contravention: monetary penalty of $7,000-$11,000; license suspension of 7-11 days
  • Second Contravention: monetary penalty of $11,000-$15,000; license suspension of 11-21 days
  • Subsequent Contravention(s): monetary penalty of $15,000-$25,000; license suspension of 21-41 days

For contravening any other provision of the Regulation:

  • First Contravention: monetary penalty of $1,000-$3,000; license suspension of 1-3 days
  • Second Contravention: monetary penalty of $3,000-$7,000; license suspension of 3-7 days
  • Subsequent Contravention(s): monetary penalty of $7,000-$11,000; license suspension of 7-11 days

What the New Requirements Mean for Non-Medical Cannabis Retailers and Employees

Non-medical cannabis retailers must ensure that anyone working in their retail store meets the requirements set out in the Regulation. Given BC is in the process of emerging from an accepted but illegal cannabis dispensary industry into a fully government-sanctioned retail industry, government inspections may be expected. Employers will need to be vigilant in ensuring workers are qualified under the Regulation and that they maintain their qualifications, provide copies of the qualification letters and that employers have the letters readily available for government inspectors. Importantly, employment contracts for workers in retail stores should clearly state that maintenance of all necessary qualifications, licenses and permits is a fundamental and ongoing obligation of employment, failing which employment terminates without liability for notice or pay in lieu of notice.

For those seeking employment opportunities in the retail cannabis space, now is the time to apply for Provincial qualification. While some may seek to have their potential employers cover the cost of the application process, applying for work with all the necessary credentials and in a position to immediately step into the workplace can provide an obvious leg-up over potential competitors.

It can be expected that, as the retail space grows and new opportunities for business and employment are developed in BC, further legal requirements will be enacted for workplaces that are, or are connected to, retail cannabis stores. We'll be sure to keep you updated as the BC retail cannabis industry continues to evolve.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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