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How Marijuana Decriminalisation May Affect Workplace Drug Testing

Health and safetyOctober 15, 2019

How Marijuana Decriminalisation May Affect Workplace Drug Testing

With the potential legalisation of marijuana on the horizon and the recent changes to prescribed marijuana, now is a great time for Kiwi businesses to understand the regulations concerning employees and the use of drugs.

The current laws

Employers can only request employees to undergo a drug or alcohol test if this is a condition of their employment and recorded in a drug and alcohol policy.

However, even if there is a policy in place, the onus on the employer is to make sure that the test does not unreasonably intrude on the employee’s right to privacy and protection of their personal data.

A provision in all employment agreements or signed policies should include when drug and alcohol screening will be conducted such as:

  • if the employee is involved in an accident, incident or near miss
  • if the employee is acting out of character
  • if there is a smell of drugs or alcohol on the employee
  • if another person reports seeing an employee partake in drug or alcohol consumption
  • as a requisite before employment or the transfer to a safety sensitive role
  • if relevant, conduct random testing (which can only be done in limited circumstances)

There may also be other instances where an employer would like to conduct a drug and alcohol testing, which is specific to their business. These should be specified in the policy or employment agreement and clearly communicated to employees.

The policy should state what will happen in the event that an employee refuses to take a drug or alcohol test. Generally, refusal to take a test will be treated as preventing the employee from being able to ensure a safe workplace and can lead to disciplinary action.

What if an employee refuses to take a test?

If an employee refuses to undergo a drug or alcohol test, the employer must ensure they:

  • sufficiently investigate the event or series of events which led to the employee’s refusal and their reason for refusing
  • allow the employee to respond before taking disciplinary action
  • genuinely consider the employee’s reasons for not wishing to take the test

A drug and alcohol policy must also include the repercussions of an employee returning a positive test result. Many employers choose to allow their employee to remain at their job, so long as the employee agrees to undertake a rehabilitation program, or meets certain criteria specified in the policy moving forward.

The results must be discussed with the employee, and the sample may be retested. It is important to note that a positive result may not necessarily impair an employee’s work, however, an employer can take a positive test into account when determining if the employee is guilty of misconduct.  If the employer is concerned about the employee’s impairment at work, they may want to consider placing the employee on suspension pending the outcome of the drug test

How might legalised marijuana use change this?

The rules for employers about drug use in the workplace are not clear and come from cases.  The key principle, however, is that employers should focus on health and safety rather than a moral judgment.   The use of drugs, be they prescribed or recreational, puts the health and safety of others at risk, and therefore is a recognised hazard.

With the recent amendments to the Misuse of Drugs Act 1975, medical practitioners may prescribe marijuana (CBD products) within prescribed rules.  With any prescribed drugs, employees should still inform their employer of any restrictions on their ability to do their role safely.

It is therefore important that employers confirm their expectations to employees and have a process in place to keep disclosures confidential.  Furthermore, employers who utilise drug tests, will want to ensure their drug test policies to cover for a potential situation where an employee, prescribed medicinal marijuana, wants to return to work.

With the upcoming planned referendum on legalising marijuana, employers should set the expectation that employees are fit to perform their role without being impaired by drugs or alcohol.

Depending on the business, an employer may want to introduce a zero-tolerance drug and alcohol policy.

The ability to take disciplinary action and drug test employees will always depend on the policy and is balanced with the employee’s right to privacy.  Testing employees and taking action for impairment can be a minefield with privacy laws.
However, without a drug and alcohol policy, employers are risking not being able to take action against employees or ensure a safe workplace – so having a well-drafted and communicated policy is the first place to start.  Following that, knowing the steps an employer can take to protect the workplace is invaluable.

We can help

If you would like to discuss implementing a drug and alcohol policy into your workplace, or have any questions relating to health and safety at work, contact Employsure today. Our team can assist with any queries or concerns you have, so call us today on 0800 675 700.

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