Weeding Out Employer’s Rights: the Impact of Cannabis Legalisation in the Workplace

During the 2020 Election the nation will be asked whether they support the proposed Cannabis Legislation and Control Bill (“CLC Bill”).  In essence, New Zealand is voting on the legalisation of recreational use of cannabis.

The CLC Bill will allow people aged 20 years and over to:

  • purchase up to 14 grams of dried cannabis per day;
  • share and legally possess up to 14 grams of dried cannabis;
  • consume cannabis in private residences or licenced premises; and
  • grow up to two plants, with a maximum of four plants per household. 

With the possibility of the CLC Bill passing into law, employers need to consider:

  • the impact it may have on the workplace;
  • what steps they need to take to ensure they are meeting their health and safety obligations; and
  • what they can do in the event an employee tests positive for tetrahydrocannabinol (“THC”), the psychoactive compound in cannabis.

Health and Safety Obligations

The Health and Safety at Work Act 2015 (“HSWA 2015”) places a duty on employers to ensure, as far as reasonably practicable, the health and safety of employees and others in the workplace. Under the HSWA 2015, risks to health and safety must be either eliminated or minimised so far as is reasonably practicable.  Employees must also take reasonable care of their own health and safety and that others are not harmed by any of their acts or omissions under the HSWA 2015.

Attending work under the influence of cannabis poses a health and safety risk.  If cannabis is legalised employers need to ensure that they are taking the appropriate steps to eliminate, mitigate and manage this risk in the workplace. 

Drug and Alcohol Testing Policies and/or Provisions

Employers, particularly those with employees performing safety sensitive roles and/or in safety sensitive areas (including employees who may drive a personal or company vehicle during the course of their employment), should have a Drug and Alcohol Testing Policy and/or provision within an employee’s employment agreement. 

A Drug and Alcohol Policy/Provision can specify, among other things:

  • zero-tolerance for drugs and/or alcohol in an employee’s system or possession at work;
  • the employer’s right to pre-employment/engagement testing, internal transfer testing, post-accident and incident testing, cause testing, and random testing;
  • repercussions if an employee refuses to undergo a test;
  • suspension;
  • disciplinary action;
  • testing standards;
  • unacceptable levels of drugs and/or alcohol amounting to a positive test; and
  • support and rehabilitation that may be provided.

If an employer wishes to randomly test an employee in a non-safety sensitive role or not working in a safety sensitive area, the employee’s employment agreement must include an express provision for random drug testing.  A Policy that provides for random drug testing for non-safety sensitive roles will not be enforceable, whereas random testing in all circumstances can be undertaken if it is an express term of the employee’s employment agreement.

What are an Employer’s options in the event of a Positive Test for THC?

Now
Currently, employers may be able to rely on the illegality of cannabis to justify disciplinary action (up to summary dismissal) against an employee for testing positive for THC, being impaired by THC and/or possessing cannabis at work (provided a procedurally fair disciplinary process has been followed).  This should be assessed by an employer on a case by case basis, taking account of the employee’s responses, policies in place, the nature of the employee’s role and other relevant factors.

If the CLC Bill comes into force
Given the CLC Bill has several stages to go through before it comes into force (including public submissions) there is no certainty about how cannabis use will be regulated, particularly in the workplace. 

Bearing in mind this caveat and based on the current bill, employers could continue to test for and take disciplinary action (subject to a procedurally fair disciplinary process) against an employee who tests positive for THC, is impaired by THC and/or possesses cannabis in the workplace.

The difficulty with cannabis use is that it remains in an individual’s system for up to 30 days.  Whilst they may not be impaired during this entire period, there is currently no method to determine when an individual is impaired by THC.  Therefore, the severity of any disciplinary action taken against the employee must be determined on a case by case basis, including but not limited to:

  • whether the employee is in a safety sensitive role or performing duties in a safety sensitive area;
  • the level of THC in their system;
  • whether employee appeared impaired by THC at work, bearing in mind the period THC can be detected but is not necessarily impairing;
  • relevant policies;
  • health and safety obligations.

What should your business be thinking about if recreational use of cannabis is legalised?

Regardless of whether the CLC Bill comes into force, it is imperative for employers to have clear policies and provisions within employees’ employment agreements that set out when employees can be tested, on what basis and the repercussions of a positive test. 

Further, employers can:

  • consider amending existing clauses and/or policies to specify a zero-tolerance approach to drugs and alcohol at work;
  • increase the frequency of random drug testing, specifically for safety sensitive roles/areas;
  • remind staff of your expectations and their obligations;
  • provide health and safety training to employees, specifically regarding the risk of substances in the workplace.

It is essential you seek prompt legal advice to ensure you are complying with your health and safety obligations and that a procedurally fair process is taken when investigation and/or disciplining an employee for a positive test.

If you have any questions regarding the impact of the cannabis in the workplace please feel free to contact our offices on:

 Auckland: (09) 953 9757
Hamilton: (07) 981 3140
Tauranga: (07) 987 0914

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