1. Generalities
In Costa Rica, the Law on cannabis for medicinal and therapeutic use and on hemp for food and industrial use, No. 10113, of March 9, 2022, was approved, which must subsequently be regulated. Indirectly, said rule obliges employers to fulfill a series of duties, even before starting the employment relationship.
In the first place, it allows the access and use of cannabis and its derivatives exclusively for medicinal and therapeutic use, with the purpose of guaranteeing the entire Costa Rican population the fundamental right to health. In this way, consumption for recreational purposes is ruled out (article 1).
Second, in article 2, numerals 7 and 8, it is indicated:
a) How a product for therapeutic use is defined (cannabis prepared for consumption, its derivatives or cannabinoids, intended for the prevention, treatment, and relief of symptoms of diseases that do not require medical supervision or authorization).
b) How a product for medical use is defined (cannabis prepared for consumption, its derivatives or its cannabinoids, to treat certain diseases or relieve certain symptoms under medical supervision).
2. Impact on the employment relationship
It is possible to visualize the impact of this Law in the three most relevant moments of the employment relationship: in recruitment and selection, during the development of the employment contract, and at the time of dismissal.
2.1. Recruitment and selection process
During the interview, the applicant may voluntarily express to the interviewer that he or she uses cannabis for medical or therapeutic purposes and therefore could not be excluded from the selection process. The preceding would be a clear, direct discrimination unless, with an exhaustive analysis of the profile, accompanied by the participation of a health or occupational health professional, it is concluded that the person cannot assume the functions for which they are to be hired, since they are required to have certain health conditions that cannot be met because they are under cannabis treatment.
The applicant must sign the consent of the company's handling of his personal data, including those collected during the recruitment and selection process.
2.2. During the development of the employment contract
Over time, while the employment contract remains in force, specific provisions must be considered.
• Job profile. It is necessary to review the profile of the jobs so that, if it is considered relevant, the requirements are indicated in it, provided that the possible effects of the use of cannabis are compatible with the execution of their tasks.
• General policy. The company must issue a policy that regulates all aspects of the use of cannabis for medical or therapeutic purposes so that both the company and the worker are informed about their duties and obligations on the subject. In this policy, there must be, among other aspects to be regulated, the commitment that the company will not discriminate against the therapeutic use of cannabis and will keep absolute confidentiality of the cases that arise with its workers.
• Evaluation by a health or occupational health professional. The health or occupational health professional must evaluate the use of cannabis for medical or therapeutic purposes to analyze whether the worker is in occupational and health conditions that allow him to perform his job effectively.
2.3 At the time of dismissal
As a result of the dismissal, several situations may arise that must be adequately dealt with.
• When the company has an active worker who consumes cannabis, and its effects negatively impact the performance of their duties, which creates risks for the company, co-workers, customers, suppliers, or himself, the dismissal may be related to the consumption of cannabis.
• When the entity has an active worker who consumes cannabis and its effects are not negatively influencing the performance of their duties and do not generate risks for the company, co-workers, clients, suppliers, or themselves, the dismissal must be supported by an objective cause, especially if, as a consequence, it is necessary to face a summary process of discrimination through the courts.
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