E-commerce giant Amazon recently announced that most of its prospective employees will no longer be required to undergo pre-employment screening for marijuana. Amazon will, however, continue to require pre-employment screening for those positions regulated by the US Department of Transportation (such as truck drivers and heavy equipment operators), conduct impairment checks on the job and test for all drugs and alcohol following workplace accidents. Experts have speculated that this change in policy was likely triggered by a combination of increasing marijuana legalisation and labour shortages across the United States. Simply put, Amazon needs workers and eliminating pre-employment testing allows it to expand its pool of prospective applicants.
Amazon is one of the largest employers in the world. Does its relaxation in policy signal a trend? What do employers in Trinidad and Tobago need to know?
The Dangerous Drugs (Amendment) Act 2019 (“DDA”) decriminalized recreational cannabis use in Trinidad and Tobago. The Act caused a stir amongst employers when it was first passed. However, it is important to note that the following activities remain prohibited under the DDA:
- The use of cannabis in public places. The definition of ‘public place’ is broad enough to include traditional commercial workplaces.
- Anything that constitutes negligence, professional malpractice, or professional misconduct whilst under the influence of cannabis.
- The operation, navigation or actual physical control of any motor vehicle, aircraft, or ship whilst under the influence of cannabis.
Additionally, Section 10 (1)(f) of the Occupational Safety and Health Act (“OSHA”) requires every employee at work to ensure that they are not under the influence of an intoxicant, to the extent that they are in such a state as to endanger their own safety, health or welfare at work or that of any other person.
The decriminalization of recreational cannabis under the DDA does not mean that employees have carte blanche when it comes to marijuana in the workplace. What it does require, however, is a shift in focus from policies based on simple possession, use or criminality to more holistic policies based on impairment, risk and workplace safety. This is somewhat mirrored by Amazon’s shift in policy, which treats marijuana use not as an absolute disqualification for employment, but as an issue to be managed as needed within the context of its operations as a whole.
It is a good idea for employers to develop and implement workplace substance abuse policies. The Industrial Court has long endorsed such policies as being in the best interests of both employers and employees, TD 94 of 2017 OWTU v Trinrico Steel and Wire Products Limited.
It should be noted however, that any disciplinary action taken in pursuance of workplace substance abuse policies must still be reasonable, proportionate and in keeping with the requirements of good industrial relations practice.
The Industrial Court has previously upheld substance abuse policies which include random periodic drug testing, TD 94 of 2017 OWTU v Trinrico Steel and Wire Products Limited. It has also recommended that, for the sake of clarity and consistency, employers designate an approved laboratory for testing, ensure that tests include the level of cannabis detected and that employees are provided with their detailed test results.
From a practical perspective, it is important to note that marijuana testing detects evidence of prior marijuana use, but not current impairment or addiction. Marijuana can be detected for a period of days, weeks, or months after use, and it is therefore possible that an employee’s otherwise harmless recreational use of marijuana outside of the workplace may produce a positive test result.
This does not mean that marijuana testing has no value, However, it is important for employers to treat it as one tool for managing marijuana in the workplace, and not as an absolute.
For some jobs, the potential consequences of marijuana use – including the risks of dangerous workplace accidents – may be so serious that a single positive test result or incident could be sufficient to justify serious disciplinary action, including summary dismissal.
The case of TD 257 of 2016 GIGWU v St. Albans Sand and Gravel Company involved a welder who was observed by his supervisor to be smoking a marijuana cigarette while on the job. The incident occurred before the passage of the DDA, but the case was decided after the DDA came into force. The Court rejected the Union’s submission that, considering the changing attitudes towards recreational marijuana use reflected by the DDA, the worker’s offence was not serious enough to warrant the termination of his employment. The Court noted that given the worker’s job as a welder, smoking while on the job was an unsafe practice. His termination was justified.
For other jobs, a single positive test result or incident might not be sufficiently serious to justify termination. However, multiple positive tests over time could evidence a substance abuse or addiction problem, warranting more serious intervention.
Since marijuana testing does not detect intoxication, it is also advisable to train managers to identify the potential physical signs of impairment, which can then be considered in conjunction with test results to provide a more holistic picture.
While there is no strict legal obligation on employers to rehabilitate employees through Employee Assistance Programs, the Industrial Court has recommended this as best practice, where practicable. Where employers have Employee Assistance Programs in place, employees should be continuously notified of them. Where employees are offered but refuse assistance, this should be documented in writing, TD 94 of 2017 OWTU v Trinrico Steel and Wire Products Limited.
The Cannabis Control Bill is intended to introduce a regime for the use of marijuana for medicinal and religious purposes. However, it is not yet in force. The Equal Opportunity Act prohibits discrimination in employment based on, among other things, disability and religion. If and/or when the Bill becomes law, employers may be required to make accommodations for employees with medical or religious exemptions. That said, it is important to note that the duty owed by an employer is not an absolute one. For some jobs the risks to health and safety might be so significant that being substance free could be said to be an inherent requirement of the job.
Additionally, the current regime does not explicitly address working from home arrangements. While the definition of ‘public place’ in the DDA is broad enough to include traditional commercial workplaces, it does not include private dwellings. Working from home arrangements are far more common now than they were when the DDA was first passed. From a practical perspective, the type of jobs that are conducive to working from home tend to pose less obvious risks than those (like drivers or machine operators, for example) where the safety risks of working under the influence are more obvious. However, substance abuse can not only impact safety, but also absenteeism, productivity, and quality of work. Employees who are working from home are still at risk of developing addiction issues and employers should be mindful of same.
As marijuana use becomes more mainstream, employers will have to continue to evolve and adapt.