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#BTColumn – Employers may raise labour concerns about cannabis policy

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Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados Today. 

by Brittany Brathwaite

I keenly recall a few years ago, a general manager shared her sheer frustration as I assisted her in constructing a social media policy, and here we are broaching the topic of cannabis beingon your policy list.

The decriminalisation of marijuana is an active national policy discussion, its implications on the working environments, however, have yet to be fully ventilated. As with many other areas of unchartered territory the topic leaves much up for discussion.

There are some areas of concern which will jump to the forefront of most employers’ minds in relation to marijuana use and the residual impact on work tasks: workplace safety, the protection of worker’s rights and the preservation and/or impact on productivity levels.

Well written and even more appropriately applied policies will ultimately guide employer’s through the gray areas post decriminalization and there is quite a bit to be learnt from those who have trodden the path before us.

Drug testing as part of your policy structure may require an overhaul in relation to marijuana. Depending on the industry many drug and alcohol testing policies allow for haphazard testing particularly in “high risk” job areas with any trace of alcohol or drugs in the system resulting in termination or disciplinary action.

Many considerations will come into play should decriminalisation occur. Could a wrongful or unfair dismissal suit be filed against an employer if an “acceptable” test result level is not outlined in the legislation to guide such things?

Will haphazard testing be feasible at all? Or will structured testing take its places to provide the latitude necessary in a society where social use of marijuana will become decriminalised? If so, your policy will need to accommodate these types of considerations.

Furthermore, I implore employers when writing these policies to think as though you are each party who will be touched by any such policy; employee, consumer, “victim”, to name a few.

There may be clearer waters where zero tolerance policies are plausible, let’s explore this a bit.

In some states within the United States there is the categorisation of marijuana in the work context as a prohibited substance, it is further defined by the methods of ingestion which are prohibited in the work environment or during the execution of work duties. In short, the use of zero tolerance policies.

We have yet to see what the bill looks like, so considering a zero tolerance policy may be a bit presumptuous as there may be the need to allow latitude for prescription use and the like within
the work environment.

Nonetheless, where the above becomes an automatic consideration is in high-risk or “safety-sensitive” positions and this may include positions in which persons operate heavy machinery and/or are responsible for the lives of others in the execution of their duties.

Zero tolerance policies may also be useful if there are overlapping pieces of legislation and/or international standards guiding a specific employment relationship and requiring no tolerance of the substance to ensure compliance.

This zero tolerance approach, however, may also have some implications when one considers the discriminatory element of labour legislation, relations and existing labour conventions.

In the United States for example the American Disabilities Act (ADA), has served as a good example for other countries to consider how overlapping legislation may impede zero tolerance approaches.

Some courts have been asked to consider whether the ADA covers employees who have prescriptions for medical marijuana to treat serious medical conditions.

That being said, one may wish to have a look at the current Discrimination Bill to determine whether coverage may similarly apply based on any existing language and therefore whether any punitive action and possible discriminatory actions in recruitment and selection could lead to some type of claim.

Based on research executed by the state of Colorado post decriminalisation, positive workplace tests increased by 20 per cent between 2012 and 2013 in comparison to a national average increase of five percent.

So one could infer that marijuana use rises post decriminalization; frankly this is quite an obvious inference however, this is not inherently indicative of negative impacts on work environment and by extension work culture.

The reaction, therefore, needs not be pandemonium but preparation. I am assuming the legislation, much like legislation we have seen in North America and some pockets in Europe, leaves room for organisations to bring some balance to the social acceptance decriminalisation allows and the organisational expectations. Once policies make sense, consequences are clear and the correct accommodations made, cultures can be preserved.

It is not possible to tackle every nuance of the workplace dynamic which marijuana may impact, nonetheless any organisation should be able to assess the general risk and subsequently implement the policy(cies) which are best suited when the time comes.

This like many other areas which seemed foreign can be managed by employers and employees alike, with an understanding of the Legislation when it comes to be.

Brittany Brathwaite is president of the Human Resources Management Association of Barbados (HRMAB), a national policy contributor & regional consultant.

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