What are the implications for employers if cannabis is legalised?
Last year New Zealand legalised the medicinal use of prescribed cannabis to alleviate pain for a limited group of people.
Come election time next year, we will be asked to vote “yes” or “no” on whether recreational cannabis should be legalised. While the media debate on pros and cons rages, what are the implications for employers?
While the vast majority of employers will not want to have cannabis impaired workers turning up for duty, the biggest concern will be for those with safety-sensitive workplaces.
If cannabis is legalised next year, employers should review and update drug and alcohol clauses in employment agreements and/or drug and alcohol policies to ensure they accommodate the fact that cannabis will no longer be able to be dealt with as an “illegal” substance.
How far employers want to go with this will depend on their views and experiences of cannabis use and the dangers of this for those in their particular workplace environment. You may ask the question, is it any more dangerous than having an employee at work who was up late drinking at dinner with friends or workmates and comes in hungover, for example?
If any risk of impairment is unacceptable, ensuring that there is a clear prohibition on the use of not only illegal drugs in a work context, but also prescription drugs and other substances that could cause impairment will be vital. This would then capture legal cannabis use and misuse of other legal substances like petrol and glue.
An employee who has cannabis in their system may or may not be able to be proved to be impaired at work, as cannabis will stay in an employee’s system long after the drugs’ effect, for most people, have subsided. For those employers whose workplaces cannot tolerate any risk of impairment, drug testing thresholds might need a revamp. These could be lowered, for instance, to recognise the risk of rather than almost certain impairment.
The definition of “reasonable cause” testing could be widened to assess speech, coordination, appearance and behaviour.
Employers could make sure their policy prohibits the use, possession, distribution or consumption of legal or illegal drugs (to include cannabis), without the employer’s consent at work and/or during work hours, including during breaks.
Addiction to cannabis is a disability (think alcoholism) and so further thought could be given to what an employer will do if faced with this problem with one of its valued employees.
In general terms, it remains to be seen how the legalisation of recreational cannabis would play out in the employment arena. From litigation overseas and from our experiences with alcohol problems arising in the workplace, we know that this is bound to involve arguments about the balance between ensuring the health and safety of workers and the rights of employees to do as they wish, within the bounds of the law, during their own private time –it is safe to say there will be some robust discussions and decisions to be made by Employers should this legislation get passed through.