By Sheryll Young, GMS-T
Globally, mobility is at a critical mass with disruptions that will change workforce dynamics. Ten years ago, insights were focused on the next generation of international assignments for 2020. Fast-forward to 2018, and include automation, robotics, digitalization, the employee/consumer-based experience, the culture dynamics of multigenerational workforces, and health and wellness, to name a few. These external issues continue to push us away from the traditional employment and assignment models, and the global mobility, human resources, talent management, and related workforce functions that take proactive measure to strategize and align mobility’s policies and programs will win in the war for talent.
A steadily growing issue over the past two decades in the legalization of marijuana. It’s not a new issue, but laws are changing fast. Consider whether its use will have an impact on our industry–and if we agree that it will, what are we strategically planning with respect to operational disruptions, safety and performance issues, employment/labor relation/law frameworks, immigration disruptions, the new travel workforce, criminality exposure, and talent management?
THE HIGH ON GREEN EFFECT
At the time of writing, marijuana is 100 percent legal in Uruguay and Portugal. Chile allows cultivation for personal and medicinal purposes. Medicinal marijuana has become legal at a federal level in Australia; only medicinal cannabis is legal with a cannabis card in Victoria and New South Wales. Medical marijuana is completely legal in Colombia, similarly for the Czech Republic and Estonia. Recreational use will become legal in Canada in October. In the U.S., marijuana use I illegal under federal law; eight states and Washington, D.C., allow recreational marijuana use, while 29 states, the District of Columbia, Puerto Rico, and Guam allow medical marijuana use. In Israel and Macedonia, marijuana is completely illegal but is available for medical use in very specific cases (e.g., for several or terminal illnesses). It is completely illegal in France; however, it is legal to sell medication containing cannabis derivatives.
Pew Research’s online platform states that across generational lines, support for legalized marijuana has grown. A wide majority of millennials (71 percent) and Gen Xers (60 percent) say the use of marijuana should be made legal, as does a narrower majority of baby boomers (56 percent).
An online article from Marijuana Business Magazine, supported by research from Brightfield Group, projects the international legal marijuana market will reach US $34.1 billion by 2021. An HR Dive online article titled “High Appeal” says legalized and decriminalized cannabis is on the rise and will create an estimated 90,000 more jobs in the U.S. by 2020 in addition to the 150,000 already in this workforce–exceeding job number projections for manufacturing, utilities, or government industries. Marijuana Policy Group reported in 2015 that “Colorado’s green industry churned out approximately US$2.4 billion in economic activity, created 18,000 full-time jobs, and generated US $121 million in tax revenue for the state.” It would be myopic to say that this touch point issue is not international; it requires a multijurisdictional approach to awareness and action to mirror the globalization that is affecting our current and future workforce.
Medicinal and Recreational Cannabis
Medicinally, marijuana has constituent of cannabis, tetrahydrocannibinol (THC), and other cannabinoids and is a physician-recommended form of medicating or herbal therapy. The (U.S.) National Academies of Sciences, Engineering, and Medicine provides insight on use for treatment for attention deficit disorder, arthritis, back and neck problems, chronic pain, colitis, Crohn’s disease, eating disorders, head injuries, HIV, fibromyalgia, migraines, and sleep disorders.
Recreationally, THC is a psychoactive compound responsible for that euphoric high. Some of the benefits include: calms the mind as opposed to inebriating it into possible aggressive behavior, improves sleep without the usual side effects of alcohol, and can increase creativity.
Either usage scenario can call into question an employer’s obligation to accommodate its use.
THE ACCOMMODATION IMPACT
The fundamental premise of duty to accommodate is that employers have an obligation to take steps to adjust rules, policies, or practices that have a negative impact on individuals–or groups of individuals–based on prohibited ground of discrimination. Under this principle, employees should feel safe to disclose their use. Marijuana remains illegal under federal law in the U.S., which makes it nearly impossible for the duty-to-accommodate principle to hold weight. However, medicinal use of marijuana can be a defensible disability condition under such legislation as the Canadian Human Rights Act, the provincial Accessibility for Ontarians With Disabilities Act (AODA), or the U.S. Americans With Disabilities Act (ADA) or Equal Employment Opportunity Act (EEOC).
The task for mobility teams is to educate the business and workforce on the risks and challenges across state and federal lines. AS this will affect business strategy across all borders, “marijuana increasingly becomes a challenge for HR and compliance functions,” says Trent M. Sutton, an attorney at Littler Mendelson P.C. in Rochester, New York, who specializes in international employment and compliance matters.
The contrasting thought is that a sensitive social norm (i.e., personal choice or circumstance) has entered the workplace in a way that will have greater and greater impact. No one is expected to turn up to work impaired, regardless of the reason for use, or to be disqualified for a disability under the law, and that framework will need to be defined and articulated to mitigate risks.
THE INADMISSIBILITY EFFECT
Tax and immigration reform in the U.S. has received a lot of attention from the relocation industry, not surprisingly, as it will impact our ability to move the workforce at a moment’s notice. Your personal life can and will be used against you at the nearest port of entry. U.S. border officials routinely question visitors on past illegal substance use prior to allowing them entry. Many have answered truthfully that they have used in the past, and some have been denied entry or given a lifetime ban from entering the U.S.
“State legislation muddies the waters,” says Sang Shin, immigration attorney for Foster Global LLP. “Although certain U.S. states allow for the use of marijuana both medically and recreationally, it is still prohibited by the federal government, which has jurisdiction over immigration laws. Simply admitting to the use of marijuana, though lawful under state laws, may negatively impact an individual’s status under deferral immigration laws and may lead to ‘inadmissibility,’ and in some instances deportation, if considered serious enough.”
As of March 2018, the U.S. Department of Transportation reported ports of entry received approximately 55 million nonresidents–16 million of them from Canada and 13 million from Mexico. Given the sheer volume of traffic across the U.S. border, potential operational disruptions include border denial, border thickening, longer wait times, and increased inspections. Workforce policies must consider and address what the applicable legislation or code states, the legal interpretation of the rights of citizens in each country, and the treatment of foreign nationals and visitors, realizing officers at all ports of entry exercise full discretionary rights on who can entry that country.
The workforce–traditional and nontraditional–is changing, and employers should feel safe to disclose their status internally with regard to marijuana use. “Be truthful with HR and global mobility in advance, so that they can vet with their immigration counsel,” says Shin. “Appropriate strategies may be implemented for employees if proactively addressed.”
THE SAFETY AND PERFORMANCE TEST
On its website, the Canadian Human Rights Commission defines a safety-sensitive job as one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others, or the environment. Whether a job can be categorized as a safety-sensitive must be considered within the context of the industry, the particular workplace, and an employee’s direct involvement in a high-risk operation. Any definition must take into account the role of properly trained supervisors and the checks and balances present in the workplace. In its 2016 report “Nonstandard Employment Around the World: Understanding Challenges, Shaping Prospect,” the International Labour Organization states that insecurity with respect to occupational safety and health arises from workers not having, or not being sufficiently protected by, occupational safety and health (OSH) provisions that shield workers from hazards, work-related diseases, and injuries, but also general conditions of work that can affect health and well-being. Insufficient training on OSH exacerbates this risk.
Greater onus will be on corporations to bridge and align safety and compliance across all employment arrangements. What are organizations defining as the “workplace,” and what measures are being taken to ensure that everyone receives the same inclusive training and adheres to a common OSH standard.
There has been a steady increase in the number of companies that are including marijuana as a medical treatment option through extended health and rug plans. What will this mean for workers’ compensation plans and claims? With the impending legalization of recreational use of marijuana, HR and mobility can provide strategic value by proactively educating the business and employees on state or national tolerance laws, policies, and programs.
RECOMMENDATIONS FOR COMPLIANCE
The United Nations Office on Drugs and Crime’s “World Drug Report 2017” recommends, “It would be benficial to the countries concerned, and to the international community in general, if jurisdictions and countries adopting new regulations were to establish systems to regularly monitor their impact across all areas of public health and criminal justice.”
HR and mobility professionals should keep abreast of legislation or developments and establish new workplace policies and update existing ones, and look at inserting clear language on controlled substances, says Sutton. Proactively raise this issue at your organizations, understand what the workforce is likely to expect in light of legislative changes, and ensure education and adherence, particularly for safety-sensitive sectors or roles. Promote collaboration with multinational counterparts on advancements in their region or countries on cannabis policy and regulation.
It is time to start addressing the uncomfortable. We no longer have the luxury of believing that traditional policies and procedures will retain the talent we are driving to attract.