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Companies urged to review drug testing policies to fit with ganja reform

Published:Sunday | June 7, 2015 | 12:00 AMAnastasia Cunningham
David Wan: I don’t think there is going to be a uniformed approach on this. Each company is going to make an evaluation on its own as they see fit, given the new legislation.
Bert Samuels: Employers are still within their right to take whatever action they see fit if ganja is detected during a drug test, because ganja is still not legal in Jamaica.

Justice Minister Mark Golding is advising employers to review their drug-testing policies to fall in line with the new regulations that now govern the use of ganja in Jamaica.

Some organisations routinely do drug screening for new employees prior to confirmation, and person can be denied employment if prohibited drugs are detected in their bodies.

Additionally, some companies also carry out random drug testing of employees, with serious penalties and termination for failed drug tests.

However, under the Dangerous Drugs (Amendment) Act 2015 (also referred to as the Ganja Reform Law), which was passed into law in February and took effect on April 15, the personal use of marijuana is now decriminalised.

The law now allows persons to legally inhale the drug in the privacy of their non-commercial residence, in quantities not amounting to two ounces.

Additionally, members of the Rastafarian faith are allowed to smoke ganja for religious purposes in locations registered as places of Rastafarian worship.

The smoking of marijuana is also legally permitted in places licensed for the smoking of the substance for medical and therapeutic purposes.

In light of this, the drug can be detected in a person's system during a drug test.

The amount of time the body retains traces of marijuana is dependent on factors such as how often a person smokes and the body's metabolic rate. It can remain in the system for days or weeks and is detectable by urine and hair analysis, or saliva tests.




"In light of the changes to the law, which has sought to basically decriminalise personal use (of ganja), I would encourage employers to re-examine their policies on the issue and perhaps modernise their practices, so that they don't treat this as a basis for excluding somebody from a job," Golding told The Gleaner.

"However, although I don't think this is something the Government should take the lead on, perhaps the Ministry of Labour could address this issue with employers. But I do think it is something the Jamaica Employers' Federation (JEF), PSOJ (Private Sector Organisation of Jamaica) and the trade unions should look at," Golding said.

"In fact, I encourage them to revisit those prevailing employment practices as soon as possible, in light of the current changes to the law."

He added: "This really is a matter for employers to decide, and if the JEF takes a position on it, that would suggest to their members and other companies that in the context of the new law in Jamaica, this ought not to be used as something to exclude anybody from employment, that would be good.

"In fact, I can't see why this would be treated as a grounds on which to prevent someone from being hired, unless the job is one where the use of any kind of mind-altering substance could impair their ability, such as driving or operating certain types of machinery."

At the same time, however, Golding said it was an employer's right to decide on who they choose to employ, stating that they were not obliged to hire someone if they were not comfortable doing so.

"At the end of the day, it would be left up to the employer, if they choose to hire that person. I don't think the law can force anyone to employ someone, outside of from a discrimination standpoint," he said.

"Constitutionally, a person would only have legal redress if they were refused employment or discriminated against on the grounds of race, religion, or sex, for example."

Attorney-at-law Bert Samuels agreed that, outside of constitutional discrimination, it would be within the employer's right to deny employment.

"Contrary to popular belief, ganja is not legal. Employers are still within their right to take whatever action they see fit if ganja is detected during a drug test, because ganja is still not legal in Jamaica," said Samuels.

"The only defence an employee would have if traces are found is if they can produce a medical certificate to prove that it was given to them for medical reasons."

He said using marijuana for religious reasons was not a defence, as it would depend on the type of job the person does.

"An aircraft pilot, for example, even if he were a Rastafarian, could not take the drug on the grounds of religious sacrament and use that as a reason to justify any breach of regulations, when it comes to public safety," said Samuels.

He said the internal regulations of an organisation cannot be superseded by the amendment to the Dangerous Drugs Act.

The attorney urged employers to review their drug-testing policy in order to make it clear, for example, to Rastafarian employees that company policy has nothing to do with their use of ganja for religious reasons.

"However, I do believe how companies deal with this issue will have to be on a case-by-case basis," he said.

In response, JEF President David Wan said it would be up to individual companies to reconsider and re-evaluate whether they needed to change their own drug-testing policies, in light of legal reform.

"I don't think there is going to be a uniform approach on this. Each company is going to make an evaluation on its own as they see fit, given the new legislation," Wan said.

"However, I think collectively we need to look at the particular angle of any legal ramifications arising from this issue on both the rights of the employer and employee."