Health and safety risks if Cannabis Referendum passes

Cannabis referendum

Has your business considered the effects of a ‘yes’ vote on the Cannabis referendum? On 17 October 2020 New Zealand will not only be voting in the general election but will also be voting on whether the recreational use of cannabis, based on the draft Cannabis Legislation and Control Bill (the Bill), should be legalised. 

What does the Bill allow?

The Bill allows for people 20 years or older to buy up to 14 grams of dried cannabis per day. People 20 years and over will also be able to possess 14 grams of dried cannabis and consume cannabis legally. Cannabis would be available for purchase from licensed outlets or people would be able to grow up to 2 plants per person or 4 plants per household. Gifting of 14 grams of dried cannabis would also be allowed under the Bill, so long as the person receiving the cannabis is also 20 years or older.

There is a difference between medicinal and recreational cannabis

It is important to understand the distinction between personal use of cannabis and medicinal cannabis. The Misuse of Drugs (Medicinal Cannabis) Regulations are already in force and allow individuals to legally obtain a prescription for medicinal cannabis from their doctors. Medicinal cannabis is highly regulated. It does not contain THC, nor is it psychoactive, meaning that those taking it will not be ‘getting high’.[1]

Workplace testing

Testing for drugs and alcohol is already a contentious issue in New Zealand employment law.[2] Workplace polices will set out whether employers may test prior to employment, for reasonable cause, post incident/accident, and/or random testing. Cannabis is just one drug that employers presently test for, based on health and safety concerns. The presence of cannabis above a specified level, generally constitutes a failed drug test. 

If cannabis use is legalised, what amounts to reasonable cause, whether a worker is impaired, and how performance may be affected, are all likely to be subject to legal challenge.

Presently, businesses should be reviewing employment policies and employment agreements to ensure that appropriate testing can be undertaken, and that policies are reasonable having consideration to the risks of the workplace. Where changes are made to health and safety policies, employers will need to consult with employees regarding those changes. Employers could also take this opportunity to provide training to employees on risks regarding health and safety and more specifically being under the influence of substances in the workplace. 

How testing is undertaken will differ between industries and depending on the nature of roles. However, all businesses will need to consult on workplace drug testing policies at the time of implementation and where there are any significant proposed changes, irrespective of whether or not New Zealanders vote to legalise recreational cannabis.

To ensure compliance with the requirements under the Health and safety at Work Act 2015, policies should be closely followed when undertaking workplace drug testing. Policies must set out clearly the circumstances under which testing may take place.

There is a difficulty in detecting whether an employee is impaired by cannabis or not, and presently, there is no mainstream test for impairment in New Zealand. The issues regarding health and safety may be the same whether an employee is impaired by a legal or illegal drug. The impact of the Bill on safety sensitive roles will obviously be higher than non-safety sensitive roles. It will be important for workplace drug testing policies to set out explicitly the level of THC that is deemed safe/unsafe (i.e. what constitutes a positive/negative test). In certain industries the accepted level may be zero due to the seriousness of hazards in the workplace.

Disciplinary consequences

In the circumstance where recreational use of cannabis became legal, an employer could still take disciplinary action against an employee for the use of cannabis, so long as the employer’s policies allow for it in the circumstances.

A comparison can be drawn between alcohol in the workplace and the legal recreational use of cannabis. Most employers have policies on employees being under the influence of alcohol while at work. Therefore, it would be entirely appropriate to include the use of cannabis in the workplace or being under the influence of cannabis in the workplace in workplace policies. Employers test for drugs not because of cannabis being legal or not, but because of the potential impact of use to health and safety. Those who work in safety sensitive environments will remain a risk to themselves and others when using.

What is clear is that if the referendum was to result in the confirmation that the Bill in some form will be passed in to law it will become increasingly more difficult to balance reasonableness, health and safety, and privacy in the workplace.

Our specialist team at DTI Lawyers can assist you in relation to employment law, including advice, drafting, and review of policy and compliance. To discuss specific matters please contact our experts on 07 282 0174.