Legal cannabis and workplaces: what's on the cards?

The likely concerns of employers should cannabis be legalised following the upcoming referendum are addressed by Ross Bell, Executive Director. This article was first published in the May/June 2020 edition of Safeguard magazine.

In September, all New Zealanders will be voting on whether or not they want cannabis to become legal. The Government’s proposed bill will mean safety controls over the supply chain, including limits on the size of the market, the potency of the products, and on how they will be sold. Cannabis is the most used illicit substance in New Zealand, and medicinal cannabis is legal for a range of different illnesses, making it something workplaces need to deal with now, regardless of any law change.

Employers rightly worry about the impairment cannabis can cause, but cannabis’s illegal status often colours the way they deal with the issue. For example, they might discipline an employee based on a positive drug test, even if the employee hadn’t used cannabis before or during work and the cannabis use had no impact on their ability to do their job. Even now, employees shouldn’t be getting into trouble if they use cannabis on the weekend in a way that doesn’t impact their job. But this will especially true if cannabis becomes legal.

Employers need to rethink the way they use drug testing as a health and safety solution in the workplace. Despite promises from drug testing companies,drug testing is not all it’s cracked up to be. It only shows someone has used the drug, not whether they’re impaired. We need to shift our thinking around cannabis use to be more like alcohol – and focus on impairment.

Cannabis legalisation is not likely to have a big impact upon workplaces

New Zealand is lucky enough to be able to look to other countries which have already legalised. In Canada, where cannabis was legalised at the end of 2018, only a small portion of employees report using cannabis before or during work (5%) – less than the 8% who reported their workplace allows consumption. This means we don’t need to worry about a big increase in people using cannabis at work. We can still prohibit employees from using cannabis in the workplace, or before they come in – the main thing is to be clear about what’s ok and what’s not in your workplace.

Organisations with existing drug and alcohol policies are in a great position

If your organisation already has an alcohol anddrug policy in place and you don’t currently drug test your staff, not much will have to change. Ideally, if cannabis becomes legal you should treat it as you treat alcohol – including the expectations around behaviour and the processes for addressing any issues. This means, if you don’t breath test staff for alcohol now, you shouldn’t be drug testing them for cannabis use. Your policy should set out the consequences an employee can expect for turning up to work impaired by cannabis - which will be the same approach as you now take if someone turns up drunk.

Organisations currently drug testing will need to adjust their policies if cannabis is legalised

Workplace health and safety policies should focus on reducing impairment – which drug tests don’t measure. At best, drug tests can only tell you if someone used a substance in a certain time frame. Drug tests are also expensive, invade employee privacy (for example by requiring an employee to provide a urine sample while supervised), and can reduce the trust employees have in their workplace.

Urine tests detect cannabis up to 30 days after someone has used it. Once it is legal will it still make sense to use this method to test for it? Probably not. Employers will need to focus on whether their staff member is currently impaired by cannabis, rather than on whether they used it at the weekend. Workplaces that focus on mitigating risk know that the best way to reduce impairment in the workplace is through quality management, a culture of reporting health and safety risks, and a culture that encourages people to speak up if they notice someone is impaired.

Drug testing in safety critical workplaces needs to be more targeted

We don’t currently advise workplaces to do urine tests as they tell you next to nothing about impairment. However, in a regulated environment there will be more incentive to ensure drug testing technology will improve.

Saliva tests give a better indication than urine tests that someone has been using cannabis recently. But saliva tests still don’t prove impairment, they just confirm substance use. So for now, and after legalisation, your focus should be on whether your employee is in a fit state to do their job in a safe and effective way.

If a health and safety incident occurs in your workplace after cannabis is legal, it will still be appropriate to do an evidential blood test, just as you would for alcohol. This means the blood THC levels you use now to decide whether to take action after an incident would still be relevant. But again, blood tests for cannabis don’t prove impairment, so it’s important to have other measures in place, such as behavioural evidence the employee was impaired.

Organisations without a drug and alcohol policy should put one in place regardless of the referendum outcome

If your organisation doesn’t have an alcohol and drug policy this is a good opportunity to put one in place. Your policy should outline what is acceptable in your workplace, and what will happen if the policy is not followed. The key focus should be on improving workplace safety and effectively monitoring impairment. This means being aware of behaviours which may indicate impairment from alcohol or other drugs. Developing a policy collaboratively with employees will help everyone understand the reasons behind the policy, and will mean employees are more likely to follow it.

Issues around cannabis in the workplace will be easier to deal with in a regulated market

If cannabis is legalised, conversations between employers and employees about cannabis will be much easier. The reduced stigma is likely to mean that talking about cannabis use will become more like it is with alcohol, with employees more easily able to talk about their use and more importantly seek help if they need it.

A regulated market means that Government will be required to invest in more resources to help workplaces deal with cannabis use, and research into better technology to measure and detect impairment –  from cannabis and other drugs, as well as fatigue, tiredness and medication. From what we have seen from other jurisdictions that have legalised we’re confident legalisation will not be a major issue for employers, despite the fears many might have on the eve of a potential change.

What’s happening overseas?

In Canada it is up to workplaces to decide their own policies around cannabis use. The Canadian Armed Forces allow cannabis to be consumed up to 8 hours before work, and 24 hours before work if the employee will be carrying out safety sensitive duties such as using weapons. Workplace drug testing is generally not allowed aside from specific circumstances in workplaces where impairment could lead to injury or harm. The use of cannabis for medical purposes is treated like any other prescription medication.