A long time ago Peter Tosh wrote a song in which he chanted: Legalize It and I will advertise it. Peter Tosh was talking about legalizing marijuana, pot, ganja, weed. In a recent article the Toronto Star published the image of Bob Marley presumably as the face of the movement to legal marijuana. For sure, attitudes toward pot have changed over the past while.
Millions of people in North America now smoke pot recreationally. Millions more use it for its medicinal purpose. CNN’s Dr. Sanjay Gupta recently explored the explored the subject of the medicinal value of weed. His documentary was aired on CNN and was critically acclaimed. To be clear, there is a growing body of research that tend to show that marijuana has a host of medicinal usage. Gupta, who started out as a skeptic, shifted his opinion by the end of the documentary. By the conclusion of the documentary, Gupta was convinced that marijuana had medicinal purposes in a wide array of situations. His only caution appeared to be the evidence which suggested the persistent use of pot may affect the developing brain of young people.
Pot was not always illegal. In the Jamaican context pot became illegal in the 1930s when the colonial government sought to criminalize the Rasta Man. In North America hemp was commercially exploited in a variety of industries. Pot has been illegal in North America and else in the world now for upwards of sixty years. Today, states like Colorado, and Washington are cashing in on the pot craze. Legalized possession of marijuana takes effect in Alaska February 2015 and on July 01 2015 in Oregon. One report noted that Colorado was slated to collect upward of $80, 000, 000 in tax revenue from the pot industry. Lest one believes that the commercial exploitation of pot only occurs south of the border, it is worthwhile exposing that the Canadian government is now a huge supplier of pot and has created a licensing framework for its growth, exploitation and trade.
To date, reports on the changing attitudes toward pot and its various medicinal value have not examined the implications of its using workplaces and work. Marijuana, otherwise known as cannabis, is a mind altering drug, reported by some technically to have hallucinogenic properties. It is most often consumed for its euphoric effect. In the main, marijuana is consumed by smoking, and in some quarters its smoking can be ritualistic through the use of what are called chillum pipes. Regardless of how the substance is ingested, it appears that constant and perpetual use of marijuana leads to an addiction.
In a recent report the Toronto Star reported noted that given the changing attitudes toward marijuana, it is inevitable that it will soon become either fully legalized, or decriminalized. The issue of managing marijuana in the workplace in now front and centre on the door steps of employers. A range of employers will soon have to come to terms with how to manage marijuana use in their workplaces, and across occupations. Make no mistake scores of employees now use marijuana in the workplace. Its use though is hush hush. Those who currently use the drug for medicinal purposes under the guidance of physician already do so in workplaces. Once the substance is legalized or decriminalized the workplace dimension of the issue will be enormous, as more employees are likely openly to use the drug inside the workplace and beyond. Cigarette smokers often take several smoke breaks during a 8 hour shift. Will it be that employees are going to be able to take a pot smoking break when the substance becomes legalized?
In Canada, marijuana/cannabis remains a substance covered under the Controlled Drug and Substances Act, despite the federal government regulation of a commercial industry designed comply with a court order mandating reasonable access to a legal source of marijuana when prescribed by a physician. Despite apparent judicial acceptance that medical marijuana should be made available, an employer’s interests in curtailing its use and potential abuse in the workplace is derived from several perspective. Certainly, an employer may be concerned with the potential for strained employee relations as second hand marijuana smoke floats about the workplace, similar to second hand cigarette smoke. While the jury may still be out on the productivity impact on workers of cannabis use, an employer may remain concerned about its use in the workplace because of pressure to maintain community standards, or increased training costs, real or perceived
Firms may well be tempted to answer the workplace impact of legalized marijuana through drug testing. Such a move is fraught with difficulties. It remains unknown at this time how legalization of marijuana would proceed. The exact framework for its legalization is not yet known. However, an employer who answers the workplace effect of recreationally marijuana use by way of the imposition of a drug test may find individual employees refusing to participate in those tests. A different issue arises when cannabis use results in a dependency on the drug.
In Entrop v. Imperial Oil a Human Rights Tribunal found that addiction to alcohol is a disability within the meaning of the Ontario Human Rights Code. The Board, in that case, invalidated random alcohol testing because Imperial Oil had not established that it was reasonably necessary to deter alcohol impairment on the job. Alcohol testing in the context of certification for safety-sensitive positions, or “post-reinstatement” may be permissible, the Board held, but only if the employer can show that testing was necessary as one facet of a larger alcohol abuse assessment process.
The analysis in the Entrop case, though decided in 1996, remains valid today. As marijuana use for recreational purposes infiltrates workplaces, one can envision a situation in which recreational users stand alongside medical users and the employer is saddled with a duty to accommodate any dependency that arises from the drug’s abuse.
Imposing drug tests of a general application nature upon all employees regardless of the nexus between the nature of the work being performed and the effects of the drug in a workplace is overbroad and probably wont withstand scrutiny. It seems clear that employers ought to take an occupational specific policy for marijuana use in the workplace, if and when marijuana becomes decriminalized or legalized.
If Peter Tosh was correct that lawyers, judges, players of instruments and a host of other professionals use and potentially abuse marijuana, then its legalization is likely to open up a plethora of workplace issues. What framework will be applied in circumstances that police officer or judge is found to be dependent on it. Do we want our judges to be adjudicating cases high like a kite? Do we want police officers to be conducting surveillance in any case when they are under the influence of marijuana? Will we permit employees in the judicial system to walk into court showing up for work, armed with their spliff? Do we want runners to show up at the workplace dropping off a supply of weed for the user?
Quite apart from these larger social issues, workplace will start to grapple with the productivity, training and other costs associated with widespread marijuana use in the workplace. Of course, employers are going to be forced to adopt a principled approach when responding to the impact of marijuana use in the workplace. More study will obviously have to be done to determine the precise labour market effect of marijuana use and abuse on workplace productivity and other employer interests.
Employers whether a Fortune 500 firm or a smaller employer are poised now for a new era in employment law, organizational culture and employee relations. As marijuana use becomes more open and prevalent in the workplace, managers and supervisors can expect to start dealing with a host of issues many of which may not be new, but nuanced.