Testing for drug and alcohol use is one of the most contentious issues in New Zealand workplace law. The government has announced that New Zealanders will vote on legislation to legalise recreational cannabis at the 2020 election. That draft legislation will include a minimum age of 20 to use and purchase recreational cannabis and “stakeholder engagement.”
Workplace drug and alcohol policies set out when the employer may test: on recruitment, for “reasonable cause”, post-accident/near miss and occasionally, random testing. With the legalisation of cannabis use, expect more challenges by workers over what amounts to reasonable cause, whether the worker is impaired, and how it affects or doesn’t affect work performance. This is less of an issue in safety sensitive workplaces and safety sensitive roles where zero tolerance the norm.
Employers may need to revisit workplace policies that address cannabis use. Employers would still have the right to set rules for recreational use of cannabis in the workplace. They have a duty to ensure, so far as reasonably practicable, that the workplace and anything arising from it are without risks to the health and safety of persons lawfully in the workplace and its vicinity. So, they may, for example, prohibit use of cannabis at work or during working hours and prohibit employees from attending work while impaired. Workplace rules regarding non-medical use of cannabis will still be enforced through the application of the employer’s progressive disciplinary policy, unless cannabis addiction can be proved, in which case it becomes a medical capacity issue and will need to be treated accordingly.
Assessment of impairment at work may prove to be the most difficult aspect of designing and implementing workplace policies. And, if the legislation is passed with a cut-off age of 20, employers will be faced with a dilemma. Do they apply the same rules for workers under 20 years, as workers 20 years and over, and if not, what is the justification for this?
If voters say “yes” we encourage employers to have their say in the Parliamentary Select Committee stages about how this will work in practice.
This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.