How Legalising Cannabis Might Affect the Workplace

Cannabis is the most used illicit substance in New Zealand. Estimates suggest that by the age of 21 in the region of 80% of young people will have used cannabis on at least one occasion with 10% developing a pattern of heavy dependent use (more).

As the Government has proposed a new legislation that will legalise recreational cannabis in 2020, employers need to consider the impacts this will have on their workplace.

What does the proposed Bill entail?

If passed, the Bill will allow for people aged 20 years and over to legally possess and consume cannabis in limited circumstances.

Moreover, the proposed Bill will allow the Government to regulate how people produce and sell the substance. The main purpose is to reduce harm to people and communities by:

  • providing access to legal cannabis that meets quality and potency requirements
  • eliminating the illegal supply of cannabis
  • raising awareness of the health risks associated with cannabis use
  • restricting young people’s access to cannabis. (more)

How will it affect the workplace?

It is without a doubt employers are concerned with the impairment that cannabis can cause (as with any other drug). With the legalisation of cannabis use, employers may face challenges by workers over whether the worker is impaired and how it affects or doesn’t affect work performance. 

The duty of an employer is to ensure workers are protected from risks – this includes dangerous behaviour resulting from drug use. Testing for drug and alcohol use remains highly contentious across New Zealand workplaces. Generally, it is used as a control measure to manage the risk of impairment at work. An employer may only ask employees to undergo a drug test if this is a condition in the employment agreement or workplace policies.

However, drug testing for cannabis use may not be all it’s cracked up to be. Cannabis can remain in a person’s system for up to 30 days after last use. Thus, it only shows someone had used the drug, not whether they’re actually impaired. Although, it’s important to keep in mind that a positive test is one of the facts that an employer can take into account to determine whether there are reasonable grounds for believing that the employee is guilty of misconduct (more). Employers should still consider other forms of control measures, such as behavioural evidence the employee was impaired on the job.

The key principle is that employers should focus on reducing risk and keeping the workplace healthy and safe. The Bill would not replace existing laws. Under existing law, employees must comply with any reasonable policy or procedure relating to health and safety, including a policy on alcohol and drugs (more).

Advice for employers

With the upcoming planned referendum on legalising marijuana, employers should set the expectation around behaviour and processes. The Drug and Alcohol Policy should be reviewed and specifically address the recreational or medicinal use of cannabis in the workplace and processes for drug testing.

Employers still have the right to set rules that prohibit use of cannabis at work or during working hours and prohibit employees from attending work while impaired. On the whole, the policy should outline what is acceptable in the workplace, and what will happen if the policy is not followed. Developing a policy collaboratively with employees will help everyone understand the reasons behind the policy, and will mean employees are more likely to abide by it.

If you require help with developing a Drug and Alcohol Policy, give us a call on 04 499 0710 or email us!

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