Recently, our Minister of Justice, Senator the Hon. Mark Golding, was reported as encouraging employers to review their policies on the issue of the personal use of ganja and “modernize their practices” in the light of the changes to the law, so that they don’t treat this as a basis for excluding somebody from a job. His primary concern, it would appear, was that an employee could now legally smoke ganja in the privacy of his home and yet be dismissed if the substance was detected in the employer’s drug test. He added that it was a matter for the employer to decide how to treat with the issue – a view shared by the President of the Jamaica Employer’s Federation, Mr David Wan. Whilst many companies are still meditating on the changes to the law, it’s unlikely that you will see any changes in their policies.
Policies up in smoke?
Maintaining discipline at the workplace is more than ensuring that the laws of the land are obeyed. The fact that an activity may be legal doesn’t make it appropriate for the workplace or the profession. So, for example, the possession and consumption of alcohol by adults is legal but, unless you’re Joy Spence (Master Blender at Appleton Rum), don’t do it at work.
An issue of greater concern is where the employer’s policy bans being in possession of, or being under the influence of “illegal drugs”. Under the Dangerous Drugs (Amendment) Act, 2015, the smoking of ganja in the privacy of one’s home is permitted but the possession of the ganja, in whatever quantity, is still illegal and may result in penalties ranging from a fine to imprisonment. That’s the difference between decriminalizing ganja and legalizing it. Ganja is not yet legal in Jamaica. If an employee reports to work under the influence of ganja, it’s not the company’s duty to investigate whether he was smoking in the privacy of his home or out in public. To the employer, it doesn’t matter where he got high. The company must enforce its own disciplinary policy and there is hardly any good reason that the policy should be different depending on where the ganja is smoked.
Employers Want High Performers
Marijuana might have a very different effect on Mary than it does on Jane. Common effects include reduced concentration, coordination and impaired short-term memory. It can slow a person’s reflexes and alter their sense of time. It can also affect short-term memory. Employers want persons who perform at optimal levels at work. If an accident occurs at work and a worker was under the influence of ganja at the time, an important part of the company’s defence to a claim against it will be its policy on smoking ganja. It has a legal responsibility to create a safe work environment and that includes recruiting responsible workers. It would not be fair or sensible to prohibit the use of ganja by only the drivers and staff who operate heavy machinery. The accountant, driving his co-worker to a business meeting, can create a liability for the employer if he negligently meets in an accident en route. It does not matter that driving his co-workers is not a part of his job function. The drug policy needs to apply to the entire work force, regardless of the effect that a particular drug may have on certain members.
Rastafarian Workers
Certain members of staff, like Rastafarians, may on religious grounds, be permitted by law to smoke herb in public places. This amendment to the law is unlikely to affect most employers. It is for Management to set the rules that apply to the business it operates. The government will have its own challenges in determining who qualifies as a Rastafarian. If and when that happens, a company would not have a duty to treat the Rastafarian employee any differently from any other member of staff. The change in the law does not create new legal rights that may only be enjoyed by some. If creates a new defence, available to persons who qualify, from legal action against them. Conversely, if an employer wishes to extend to its Rasta staff the privilege of smoking herb in the designated smoking area, non-Rastafarian employees would no proper basis for complaint on the basis of discrimination. There might be many other bases for complaint, such as the lingering aroma, but those are not matters that are within the scope of the law to address.
Many have waited a long time to see the legalization of ganja in Jamaica. And, unfortunately, there are numerous incorrect articles published internationally that declares that ganja is now legal in Jamaica. In due course, that myth will either be dispelled or become a reality. But for those who might be waiting for employers to change their stance in relation to the possession or use of ganja, don’t hold your breath.
