Hi everyone, I am a partner working in the employment and health and safety at Wynn Williams and will be answering your questions. Over recent years, we have had a high involvement in both preparing, and enforcing, drug and alcohol policies. We developed a real expertise in this over the Canterbury earthquakes, as it was a real focus in many industries. The next instalment is the proposed referendum later this year. We have already had a lot on inquiry (in between covid-19 issues!) about how any changes, due to the referendum, might impact on drug and alcohol policies. I have also spoken at conferences already on this topic. I'm happy to answer your questions on how the upcoming referendum could impact the drug and alcohol policy for your organisation.

OK, it's time to post your questions here. It would be great to have two or three questions posted by, say, 9.15 tomorrow. More questions always arise during the session, of course.

Hi Amanda before we get to the referendum I note that the Medicinal Cannabis Scheme came into effect on 1 April 2020 (yes while we were in lockdown) with the commencement of the Misuse of Drugs (Medicinal Cannabis) Regulations 2019.

(Note: The Scheme is entirely separate from the upcoming referendum)

Would you agree with my dot points below

• As a prescribed medicine, it would have to be disclosed before testing

• It has a very low THC level and should not show up in the screening tool/test. 99% of the time it doesn’t, but if the doses increase as the person requires more it could.

• It should be treated exactly the same as any prescribed medicines. If it says “May create drowsiness or do not operate heavy machinery” then you shouldn’t.

• Not all doctors can prescribe Medicinal Marijuana at the moment

• Medicinal Marijuana is not yet subsidised by Pharmac

With regard to your bullet points (subject to policy and testing regime):

• As a prescribed medicine, it would have to be disclosed before testing - yes it would need to be disclosed

• It has a very low THC level and should not show up in the screening tool/test. 99% of the time it doesn’t, but if the doses increase as the person requires more it could.The CBD products are defined as having less than 2% THC

• It should be treated exactly the same as any prescribed medicines. If it says “May create drowsiness or do not operate heavy machinery” then you shouldn’t.that's correct. it's all about ensuring people can work safely

• Not all doctors can prescribe Medicinal Marijuana at the moment Although the legislation initially proposed the need for a specialist sign-off, the regulations, now in place, technically allow all general medical practitioners to prescribe medicinal cannabis to their patients.
• Medicinal Marijuana is not yet subsidised by Pharmac this is not something I can answer

Hi Amanda,

Do you think with the introduction of the AS/NZS 4760:2019 oral fluid testing standard this would have to become the default testing method for post incident/ random testing?

Eventually, there may be a move to oral fluid testing because it is said to assist to assess for impairment. However, I understand that there are issues with the technology being able to achieve all the cut off concentrations and drug types listed in Standard AS/NZS 4760:2019 at the moment. Impairment is the key issue that has been missing with testing to date, and it has, instead, focused on being over cut off limits. If cannabis is legalised, there may be more pressure for some kind of impairment testing in the market.

Hi Amanda, We are already random drug testing (and have been for years) our contractors and employees, do we need to do any more consolation in shifting to a blended mix of oral and urine?

We won't be doing this for a while and will socialise with all what the plan is but in terms of the D&A policy does it need to reflect or identify oral testing?

Start firing in your questions, people!

If oral testing is available, it may make things more simple but it is not essential just because cannabis may be legalised. If cannabis is legalised, it will be similar to alcohol in that employees will be lawfully able to use the substance in their own time but you won't want them to be impaired at work. That points to an impairment test but in the absence of such a test, employers could continue with the measures in their existing D&A policies, which are usually focused on whether the ASNZS 4308:2008 (detection in urine) cut off levels are exceeded. but as impairment testing becomes the norm, we can see there will be pressure to move away from testing that does not show impairment per se. It is still open to employers to have zero tolerance to any use provided it is communicated correctly.

Hi Amanda I agree the Standard AS/NZS 4760:2019 does not talk about impairment it talks about recent use.

Would you expect urine testing to be replaced by oral fluid testing? Given that urine testing is unrelated to impairment.

Once again, it's a framework for testing and regulation of that side of things. Employers are free to make their own policies over the top of that. Of course, correct employment process needs to be followed to introduce or amend policies, and a policy will be more defendable if it refers to standards.

Eventually, over time, this may happen. At this stage, my intel is that we are not there with devices yet. If cannabis is legalised, this will likely create pressure for oral testing and for a measure of impairment.

How do other countries manage impairment testing? Just wondering about roadside policing. Alcohol testing is straightforward at the roadside, could THC testing be able to be done so that the driving limits are policed?

Why are we so concerned with usage testing over impairment testing?

I understand that, in Australia, there is road side testing for drugs, involving a screening oral swab and then, if 'positive', a further oral fluid test (similar I understand to what oral screening in NZ would move to). There are also subjective "walk along the line' type tests and pupil dilation, which can be used but, if the Bill passes, more work might be done on that. Any of that could be drawn on in the workplace, as appropriate.

Because that has been the only objective measure available so far. There has been no objective or standardised test for impairment, which has forced employers to refer to the ASNZS 4308:2008 (detection in urine) standards, which we all know only shows presence in the system and can be detected some weeks out from usage. It's been a case of making the best of the situation.

That's encouraging. Why don't we hear about appropriate impairment tests more. Is any organisation doing work in this space?

Adding to Bruce's question what do you think of these points?

We need to keep a focus on reasonable cause and realise that any reasonable cause we have is reasonable cause to suspect impairment whether that be drugs, alcohol, fatigue, distraction...

Reasonable cause is our version of 'walk the line' and our final defence on the job.

Oral fluid with its shorter detection period could encourage workers to self-report too tired because they are not worried about the joint they had a week ago

If cannabis is legalised, I'm sure there will be more pressure for impairment testing to be developed. I hear that there would be work undertaken by the Police for road safety purposes, for example.

In countries where it's already legal, how are companies testing for impairment? Is it just in NZ that we don't have accurate impairment testing tools? Or have these not been developed yet?

Surely we should have testing capabilities BEFORE legalising cannabis! Not just for the Police, but for safety-sensitive industries like construction, forestry, fishing etc

Reasonable cause is an important part of the testing regime and is the indicator of the situation of most risk ie you have a worker who currently does not appear to be fit to work. So, yes, reasonable cause is a good measure / screen in the first instance and that is unlikely to change. The testing regimes are more heavily relied on with random testing as you are not dealing with an employee who necessarily appears to be impaired or has had an incident for example. Yes, if testing shortens the period in which they might be 'caught', they may be more inclined to be more honest or self report issues but it comes back to culture in the workplace.

In Canada the most common form of testing is saliva testing. The reason for this being that this method detects shorter periods of time between use and testing. Though not an impairment test, wouldn't this be more relevant?

Looking at the 400+ responses to the recent Safeguard survey on legalisation, I suspect many H&S people fear that legalisation of cannabis will lead to an increase in the number of workers turning up for work impaired.
Is there any evidence this would occur?

What is the clause that has led everyone down the path of random testing?

Isn't it also true that the roadside alcohol and blood testing is not an impairment test either? At best it indicates likelihood of impairment which we then use to put on our 'balance of probability'

It varies around the world. There are physical sobriety tests, and we know that Australia, our nearest neighbour, has oral testing. I'm not sure of the reason why oral testing is not yet established in NZ but understand there are licensing and unit standards to be worked on. This may be something that is developed up to and beyond the referendum.
Usually, it would make sense to have testing available before legalising but it appears that the focus has been more on the users of cannabis, ability to tax and freeing up Police time, rather than the flow on effects into the workplace.

Yes, there has been a lot of focus on oral testing because of the shorter window which, in turn, points to a greater likelihood of impairment or being under the influence than urine testing

@ Bruce, we don't random test but we have a low bar for reasonable cause (mainly vehicle & plant damage)