Preparing your businesses for the cannabis referendum

In September 2020, New Zealanders will be asked to decide on whether or not cannabis should be legalised via a referendum. https://www.referendums.govt.nz/cannabis/summary.html

In a nutshell a ‘YES’ vote will allow a person aged 20 or over to be able to:

  • Buy up to 14 grams of dried cannabis (or its equivalent) per day only from licensed outlets
  • Enter licensed premises where cannabis is sold or consumed
  • Consume cannabis on private property or at a licensed premise
  • Grow up to 2 plants, with a maximum of 4 plants per household
  • Share up to 14 grams of dried cannabis (or its equivalent) with another person aged 20 or over.

In July this year, Professor Juliet Gerrard and a panel of scientists issued a summary of international evidence and regimes for legalising cannabis, as requested by Prime Minister Jacinda Ardern. This summary shows that people who start using cannabis at a young age are less likely to finish their education and more likely to be unemployed, use other drugs, experience mental health conditions and develop ‘cannabis use disorder,’ the panel wrote. The summary goes on to state that, ‘cannabis use disorder’ is defined as problematic use of cannabis which could be mild or, at its most severe, an addiction. A person with problematic use of cannabis could experience anxiety, sleeping problems, depression and appetite changes if they stop using the drug. Of particular relevance is the fact that cannabis users had a ‘one-in-five risk’ of developing the disorder. However, the panel of scientists also found the drug caused lower levels of harm than alcohol or tobacco, and that more people may seek help for cannabis problems if it were legal. The referendum is similar to what was used in Canada, which was described as a ‘controlled, commercial’ model.

What could the referendum potentially mean for businesses and workplace safety? 

An Employer’s ability to manage issues associated with cannabis becoming legalised is through a Drug and Alcohol Policy, which is fit for purpose and legally compliant.

Given the growing, processing and smoking/consumption of cannabis may be legal, it will not alter in any way an employer’s duty to provide and maintain a safe workplace for workers, contractors, visitors and members of the public.  

Employers are able to consult with staff and put in place a Drug and Alcohol Policy. Such a policy forms part of the rules and requirements of an employer’s business, which all employees must comply with. Failure to comply with an employer’s workplace policies can be grounds for an employer to take disciplinary action against an employee up to, and including, summary dismissal.   

Provisions relating to drugs should be developed between an employer and employees and set out in a comprehensive Drug and Alcohol Policy. A workplace Drug and Alcohol Policy sets the standards of behaviour, expectations and may incorporate provisions in terms of rehabilitation and support for employees who breach it.

Having staff involved on the establishment of such a workplace policy is important as it is a legal requirement and gives ownership of the document. Remember involving staff is a consultation process not a negotiation.   

Typically, a Drug and Alcohol Policy covers the types of testing that will be performed, for example – Random Testing, Reasonable Cause Testing, Post-Accident Testing, Pre-Employment testing etc, the testing process , how results will be used and stored, what actions may result from testing results, and what types of rehabilitation may be available, etc.  

Currently urine testing has been shown to be the most reliable form of testing for illegal drugs. Urine testing can detect use of cannabis up to 3 weeks ago, however it does not detect impairment. Saliva tests are available, although there are some questions around the reliability of the results. Saliva tests are used to detect recent cannabis use i.e. within the last 48 hours. Again, salvia tests do not indicate impairment.

Employers need to:

  • Review current Drug and Alcohol Policy – will it be fit for purpose under the proposed changes?
  • Review their stance on cannabis given it may be legal.
  • Identify and confirm safety sensitive tasks/roles and implement Random Testing.
  • Discuss the company culture/appetite around legal cannabis.
  • Review information provided to employees re drug use in general.
  • Think about mobile workers who may be out and about and thus may have access to legal cannabis providers and smoking rooms (licensed premises).
  • Think about ’other cannabis products’ over and above smoking that could find their way to

Most Drug Policies use terms like ‘zero presence or zero tolerance’ as opposed to using terms like ‘impairment’. Identifying the presence of a drug is very objective whereas describing and measuring impairment is very subjective. Cannabis is somewhat more difficult as currently there are no reliable tests to measure impairment. Employers should be considering redefining ‘reasonable cause’ provisions within their policies to better scope when a drug test would be considered reasonable.

At the end of the day, employers require their staff to be fit, willing and able to perform their duties at work and in a safe manner. All workplace messaging must be around this – especially if the law is passed and cannabis use becomes legal. It is the same messaging that we use around alcohol.

The biggest threats may be consumable cannabis products being taking into workplaces. Cannabis can be used in a range of consumable products which could be carried into a workplace undetected.  Employees could just be chewing lollies, but the lolly could include cannabis at levels to cause a ‘high’ or impairment. Detection would be a big issue.

 Again, having up front discussions around this, setting expectations and standards before any potential law change will assist in a smooth transition. Employer’s should be proactive and consider the implications of cannabis becoming legal in their workplaces and take steps to ensure their workplace policy on Drug and Alcohol Testing is up to date.

Start talking to staff now. Listen and decide on a course of action.

EMA has various resources and templates available to assist members in this area, including a Template Policy Package and/or Testing Solution, which is provided by our business partner WorkCare – New Zealand’s premiere drug and alcohol agency. For more information, contact AdviceLine on 0800 300 362, or visit Shop.ema.co.nz

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