The upcoming election this year will also give the public the opportunity to vote on a referendum as to whether recreational cannabis should be legalised in New Zealand. While this is a non-binding referendum, the current government has committed to honouring the results if it is re-elected. Many employers may be wondering how the legalisation of cannabis will affect the workplace, and how to deal with it.
Cannabis Legislation and Control Bill
The Government has released a draft Cannabis Legislation and Control Bill that outlines how recreational cannabis would be regulated. This includes:
- Restricting the use or purchase to those aged 20 or over;
- A ban on marketing or advertising; and
- Limiting consumption to private or licensed premises.
In light of these proposed changes, many employers may want to carry out drug tests on their employees. Additionally, testing employees (especially those operating in safety sensitive roles) can assist an employer in complying with their obligations under the Health and Safety at Work Act. Under this Act, an employer must ensure, so far as is reasonably practicable, the health and safety of workers.
Policies
In order to administer any drug test to an employee, it is crucial that their employment agreement contains a clause allowing this. If not, any disciplinary action following a positive test may not hold up to scrutiny and could result in a personal grievance claim for unjustified disadvantage or dismissal against the employer.
Additionally, the employer should have a comprehensive drug and alcohol policy that covers the process of testing. This should contain information on when testing will occur, how it will be carried out, and what steps will be taken in the event of a positive result.
How to test
There are four general ways that employers drug test their employees:
- Pre-employment test
- Reasonable cause tests
- Post incident tests
- Random tests
Reasonable cause and post incident testing are generally viewed as acceptable for all employees, provided the employment agreement contains a clause allowing this. These tests should only be administered with reasonable cause (i.e. an employee showing signs of drug impairment) or after a workplace incident or near miss.
Random drug tests are generally only justified if the employee operates in a safety sensitive role, such as operating heavy machinery. Therefore, randomly drug testing your average office worker is unlikely to be acceptable. Employers should ensure that these tests are truly random and provide detail on how this process will work in the relevant policy.
If New Zealand does see cannabis legalised, employers will need to have clear procedures and policies in place to deal with impairment in the workplace. This is especially important for employers who operate in safety sensitive areas. For employers who do not operate in safety sensitive sectors, drug testing should only be used when there is reasonable cause to suggest that an employee is under the influence of drugs, or after a workplace incident. If you are looking to introduce drug testing into your workplace and would like guidance around the legal implications, please contact a member of our team.
Workplace Law team
Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green, Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Fiona McMillan
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