Or as Unite Union senior organizer Joe Carolan puts it: “Bosses shouldn’t try to control your free time.” “If you’re at work, ready to work, then that’s it.”
THE EMPLOYMENT LAWYER
Anthony Harper partner Jennifer Mills, head of the law firm’s employment practice, says the leading case on drug testing in New Zealand came from a dispute between the Engineering Printing and Manufacturing Union and Air New Zealand. Basically, Air NZ wanted to implement a drug and alcohol policy, which, among other things, allowed periodic, unannounced random testing across the airline’s entire business. The Employment Court found random drug testing was permitted in safety sensitive areas, but not across the board.
Employers were still, however, allowed to drug test if they had a reasonable suspicion an employee was under the influence. Mills says the debate between impairment and recreational use centres around the fact cannabis can remain in a person’s system for several weeks, whereas other types of drugs, such as methamphetamine, can quickly clear from the system. “The question therefore becomes whether an employer is justified in disciplining an employee for a positive test result stemming through remaining traces of cannabis from recreational use on the weekend, when at this stage, the employee’s performance at work would not be impaired.
“Certainly, employees ought to be free to do what they please in their spare time if it has no impact on their ability to perform work or the employment relationship, and employment law does recognize the distinction between the professional and private lives of employees.” Mills says a number of her clients are investing in alternative drug tests which only pick up recent cannabis use in an attempt to mitigate this. If cannabis is legalized, employers would still be able to enforce policies to prohibit use similar to the way alcohol is, she says. This would mean preventing the use of cannabis at the workplace or in circumstances where it could affect an employee’s ability.
Overseas legislation, such as in California, had included an express clause to protect an employer’s right to drug test and terminate employment for cannabis use.
THE DRUG TESTER
Karl Hardy runs Workcare, a drug testing business, and sees cannabis use on a daily basis. About 10 to 12 per cent of those tested come up positive for drugs, and of those, about 70 per cent for cannabis. While detecting the drug does not mean one’s judgment is impaired, Hardy says the doubt will always be there if there’s an accident. “As soon as you start getting into those high-risk jobs, that’s when you need all your senses. You need your sense of timing, sense of judgement and distance, and that’s what cannabis affects.”
Once drug testing was used as a punitive measure, a big stick. Now he says there’s been a big swing towards drug testing for health and safety reasons, and a focus on rehabilitating good workers.
For some people, it’s a wake-up call. “I always say there are four reasons people give up: the liver, lover, livelihood or the law.” Unfortunately, the resources for employers wanting to point their staff towards rehab are scarce, which makes him cautious about legalizing cannabis. From what he’s seen of synthetic cannabis and the lower age limit for alcohol, he expects to see a major jump in usage if cannabis is legalized.
“As soon as you say it’s legal … then the mindset is, it must be okay.”
Psychotherapist Kyle MacDonald specializes in treating addictions. He believes cannabis is a health problem rather than a legal one and supports decriminalization. So when it comes to workplaces, he thinks they should treat cannabis like they do alcohol, allowing for recreational use in workers’ own time, but not tolerating hangovers either. “Common sense says we don’t want staff turning up drunk, but on very special occasions you might go out for a work social function and drinking within moderate limits is kind of okay.” Nevertheless, “I think generally you get the best out of people when they’re sober”. When it comes to commonly espoused claims about working under the influence, MacDonald said the jury’s out.
Creativity? There is some evidence that it makes people less inhibited and more open and creative. But “there are tonnes of creative people who don’t use cannabis.”
Relief for the anxious? Yes and no. “Sometimes people find it makes their anxiety worse. And one of the things in New Zealand, because it’s illegal, we don’t necessarily know which particular strains they might be using. “I think the safest thing we can say is that it shouldn’t be used by adolescents.” (Evidence suggests that cannabis on young brains can trigger early onset of a mental illness.)
However, it’s too easy to throw heavy and casual users of cannabis into the same boat, MacDonald said. “When you look at the use statistics for New Zealand, at any one time there’s a huge number of people who are presumably using non-problematically and getting on with their lives and work. “If we’re going to look at cannabis use, the overarching question is, is decriminalizing it or legalizing it going to make much difference to the way we use it? And I guess there’s a strong argument that it wouldn’t make much difference to the amount of use, or the way it’s being used.
“In fact in some ways it’s going to be helpful in terms of being able to be more open around having rules and policies and regulating it in the workplace.”
THE UNION REP
Unite Union senior organizer Joe Carolan is supportive of the legalization of marijuana. While he obviously doesn’t condone drug use during work hours, he says it’s unfair some of the “harder stuff”, such as cocaine and methamphetamine, can be out of your blood in 24 hours, while marijuana use lingers for two weeks. He says that unfairly catches the recreational use of “hundreds of thousands of workers”. There had been cases of employees having a big night and coming to work smelling of alcohol, for instance, who had been disciplined despite not being impaired for work.
If you were at work, and ready to work, then that should be all you need, Carolan says. “It’s rubbish. “Bosses shouldn’t try to control your free time.”
He supports random drug testing but suggests workers are good at self-policing anyway. Carolan believes the discussion around medical marijuana has been instrumental in getting people to change their minds on the drug. “Internationally, there’s a growing move towards the decriminalization of marijuana.
“That’s where we’re headed.”