Legalised Cannabis: A test for employers

New Zealanders will vote on legislation to legalise recreational cannabis at the 2020 election. NZSA CEO Gary Morrison writes potential legalisation presents a minefield for employers of workers in safety-sensitive positions.

If the New Zealand public support next year’s referendum and the use of cannabis is legalised, employers will be faced with the very difficult task of not encroaching on the lawful activity employees might engage in during their own time, whilst ensuring employees are safe and productive at work.

Arguably, employers can only control what an employee does in their personal time as far as those activities impact their ability to safely and productively perform their role. This does not, however, mean that employees will be allowed to come to work stoned, as the same principles that apply to impairment from alcohol at work will apply to impairment from cannabis.

Employers will still be able to require their employees to attend work in a fit state to carry out their duties safely, responsibly and to the best of their duties. The challenge will be in how this can be managed.

Employers are responsible for managing risks at their workplace, including the risks associated with impaired workers carrying out safetysensitive roles, which would include many – if not most – security related duties. Part of managing these risks will be having policies and procedures to address impaired employees, including testing.

It may even still be possible to have a zero-tolerance testing policy for employees who hold safety sensitive positions or duties.

Employers will need to have a drug and alcohol policy that details its expectations and specifies when the employer can require drug and alcohol testing and spells out the process to be followed should an employee return a non-negative result or refuses to take the test.

There are three common situations in which employers’ drug and alcohol policies can lawfully request a drug or alcohol test from an employee: 1. Following an accident or incident in the workplace and involving the employee (post-incident testing)

2. If the employer has reasonable cause to suspect the employee is impaired by drugs or alcohol, for example slurred speech or glazed eyes (reasonable cause testing)

3. Randomly, where the employee holds a safety sensitive position and has agreed in his or her employment agreement to undergo random drug testing (random testing)

The fact that an employee tests positive to cannabis under any of the scenarios above, will not however be conclusive, as the test may only indicate previous use rather than impairment. If cannabis is legalised, consideration will need to be given towards establishing ‘acceptable thresholds’ for testing purposes and in determining at what level an employee may be unsafe.

It may also become a requirement for the employer to prove that the employee was actually impaired during work time (for example, smelling of cannabis and behaving unusually) before disciplinary action can be taken.

In addition to establishing acceptable thresholds, the accuracy of testing methods will also come under scrutiny and in probability – where positive (non-negative) results occur – secondary testing may become a requirement to ensure the accuracy of the initial test. This all presents a minefield for employers and our advice is that if you have safety-sensitive positions, a zerotolerance policy for drugs and alcohol should be implemented and supported by random, reasonable cause and post-incident testing. To support this, employers should work with employees to ensure they know their workplace drug and alcohol policy, the employers’ expectations regarding cannabis use, and when the employer is entitled to conduct drug and alcohol testing.

For employers who do not currently have a zero-tolerance policy for drugs and alcohol, now is the time to start looking to implement one rather than waiting until after the referendum.