The Jeff Cumberbatch Column – Medical Marijuana in the Workplace
The proposal by the government to legalize the use of marijuana for medical purposes is likely to have a significant impact on employment relations in general and the workplace in particular.
To date, the local proposal for legalization does not contemplate recreational marijuana use but, given the likely concomitant increase in the availability of the substance with legalization, it seems unlikely that there will not be at least an unofficial relaxation in the rigour of enforcement of the current legal prohibitions on the possession, supply and handling of marijuana. This fact, at least, should spare human resource professionals from having to distinguish in the workplace between those who consume marijuana for therapeutic purposes and those who do so merely for recreation.
And while there has been, as yet, no draft legislation on the matter, it is possible to make an educated guess that the law will allow those who are prescribed marijuana by a certified medical practitioner to obtain controlled cannabis from licensed providers or to produce a quantity for personal use or, perhaps, even to designate a provider. In this context, the key to legality will be the lawful prescription.
In my view, the prospect of medical marijuana being obtained from brick and mortar stores is still a way off, but we are a culture that is, if nothing else, inured to the commercial sale of products and this phenomenon will doubtless soon reach the supply of medical marijuana.
It is foreseen that the main impacts on the employment relation will be in the areas of discrimination, occupational safety and health, and employee entitlements.
In the context of discrimination, the critical issue will not arise so much in the classical sense of affording different treatment to similarly situated employees, but rather in the accommodation to be afforded to those workers who have been prescribed marijuana as part of their medical regimen.
Unfortunately, to date, Barbados has not enacted a general anti-discrimination statute that would cover the private sector. We have allowed ourselves to be content with the constitutional guarantee that, because of the state action doctrine, is of benefit to state employees only.
There is a provision covering anti-discrimination at work in the text of Protocol VI, where the Social Partners agree that a national employment policy should “ensure the freedom of choice of employment in an environment void of any form of discrimination [emphasis mine], and some clauses of the Employment Rights Act 2012 treat as automatically unfair a dismissal where the reason for it is determined to be “that the employee is or was a disabled person…in circumstances where the employer could have reasonably been expected to offer the employee alternative employment…” or where the dismissal is based on any of the traditional non-permissible grounds such as race, colour, gender, age, marital status political opinion, national extraction or social or indigenous origin, trade union membership and activity, pregnancy, HIV seropositivity or affliction with any other life threatening illness, or disease.
In spite of the impressive protection provided by this list, it does not cover an act of discrimination falling short of dismissal, so that an employee who is not accommodated by an employer in order to treat his or her “disability” with marijuana would have little recourse under this statute.
Moreover, while the text of the Protocol quoted above would seem at first blush, to be beneficial to a medically compromised employee, it is not a legally enforceable document and, in any event, the right is not individualized nor is its language contractual in nature.
So far as employee entitlements are concerned, one nascent issue will be whether medical plans by the employer will cover the cost of obtaining medical marijuana. This is essentially a matter for agreement between the relevant parties; the employer and the insurance company. While there is no immediate legal bar to such coverage, the matter is one dependent on the voluntariness of the entities involved and it is recognized that not everyone will be keen on the use of marijuana, even when consumed for medical purposes only. This should be a bargaining chip for workers’ organizations during negotiations.
Finally, since a prescription for medical marijuana does not entitle an employee to compromise the safety of anyone at the workplace, including themselves, employers may want to know if they have the right to test employees to detect impairment in the employee.
This is a rather complex issue; first, the legality of the right to test at all. While this may be conceded as implied into the managerial imperative in safety sensitive sectors such as the operation of heavy vehicles or machinery; it becomes purely a matter of contract and human rights law in other contexts. To this end, the local employer should enter into dialogue with the recognized bargaining agent, if there is one, to have the right to test incorporated in individual contracts of employment. Alternatively, the employer might wish to publish a workplace policy that provides for testing where there is a reasonable suspicion of impairment that poses a threat to the safety culture of the workplace.
Under the Safety and Health at Work Act 2005, the employer has a duty to use reasonably practicable measures to ensure the health safety and welfare of employees and the safety of lawful visitors to the workplace. Section 7(4) of that Act also mandates the employer to prepare, revise as may be appropriate and publish to employees a statement of general policy with respect to workplace safety. It may be argued and is submitted that this policy is the touchstone for employers to regulate the use of medical marijuana in workplace relations.
Second, there is no bright line for what constitutes impairment because of marijuana use. It is notorious that tolerance levels vary from individual to individual, to the quality and amount of the substance consumed. Perhaps the definition of impairment should be left up to competently advised drafters of the legislation to prescribe what would constitute necessary indicia for an employer to have sufficient grounds to test an employee.
A blessed and happy long Easter weekend to all my readers!