Thank you for having me, and thank you, all, for your questions. If anyone has any queries, they can get in touch: amandadotdouglasatwynnwilliamsdotcodotnz

If the Bill is passed,it will be important to review procedures and policies and bring them in line with expectations

Agreed. There is no point having a piece of paper in the drawer gathering dust. Organisations need to live and breathe their policies and have the right culture. The policies, however, are a very important tool to use when/if there is an issue and it is crucial that they accurately reflect what you need to be able to do. Many employers have been hamstrung due to their lack of adequate policies or requirements - or not following what they wrote!

I think there has been a lot of work on this already and, if cannabis is legalised, this work could be reinforced and built on. Primarily it would be around policies and ensuring that they are clear and spell out what is and isn't acceptable. There is still scope to make cannabis use unacceptable in the workplace if it impacts on safety, even if it is legal. Think about the workplaces that wont allow workers to drink alcohol during the day, even at a fancy lunch.

The introduction of medicinal cannabis has already occurred and would validly impact on the prescription side of drug testing (eg declarations as to prescriptions) and impairment with machinery etc in the same way that other medicines would. That would not be discrimination. Steps around the use of drugs would not be discrimination but any discrimination due to the person's condition would be. The key to being classed as a medicinal cannabis is that the substance has CBD (not THC) and does not create a 'high' - so if someone who is high claims they are on medicinal cannabis, it's worth an inquiry into what they are taking.

It might come. Noone knows which way the referendum will go so that might be factor. Normally we rely on the driving requirements so the work that the Police are doing might come through and assist, too, hopefully

It could be possible. You would need to speak to a technical person as to whether this was necessary. The key would be to ensure that your policy adequately outlines the steps you are going to take and that you actually follow those steps 'to the letter'. The courts have come down heavily on employers who do not follow their own policies in relation to drug testing - likely because of the recognised invasion of privacy factors and the seriousness of testing etc.

Case law supports the fact that random testing can be undertaken in safety sensitive areas. There is a balancing act between health and safety and the invasion of personal rights which can be justified where the consequences can be significant.

There is no perfect outcome from any of this testing. They are all tools in the toolbox in a situation where there is no definitive test

It will become like alcohol. Workplaces can still have policies in place that workers cannot turn up to work having just used the substance nor can they take it at work. So, employers in safety sensitivie areas, for example, would not be forced to allow workers to smoke cannabis on their breaks.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.