Cannabis – a prescription for lawful termination of employment?

Cannabis. Social perceptions about the use of cannabis are shifting. Medical cannabis is being lawfully prescribed for various illnesses - it appears to be effective in some cases. And it seems that recreational use is becoming more acceptable. So, how do these social changes play out in the workplace? And what actions can an employer lawfully take against an employee if they return a non-negative test result for cannabis? It is a minefield, but one that can be successfully navigated.

We answer some common questions below. 

Can an employee lawfully be dismissed if they return a non-negative result for cannabis?

There is no simple answer to this. It depends. Each situation should be considered against the relevant background. In saying this, if a fair and reasonable process is followed (which includes consideration of the employee’s role – safety sensitive for example, and alternatives to dismissal), and there has been a breach of a lawful and reasonable policy, then ‘yes’ dismissal could be justifiable. It is important however, that employers do not just jump straight to dismissal. Mitigating circumstances must be carefully weighed and considered. Depending on the circumstances, it may be that rehabilitation or redeployment (potentially for a finite period) could be appropriate.

…BUT what if they ingested cannabis days/weeks before the test?

The Employment Relations Authority (Authority) recently grappled with this issue. The employee was randomly drug tested and returned a non-negative sample of THC.  The employee was a truck driver. The results were above the screen cut off level of 15ng/ML for THC as set out in the employer’s policy. The test was undertaken on a Monday. The employee admitted that he ingested cannabis during a night out the Saturday evening prior to the test – so about 36 hours earlier. The short point is that the Authority determined that the dismissal was substantively justifiable as the employee had attended work ‘under the influence of drugs’ which was a breach of the employer’s policy. More about ‘under the influence’ below.

Thus, the answer to the above question is termination can be lawful even if cannabis was ingested days/weeks before the test was undertaken.

…BUT what if cannabis has been medically prescribed?

As the law currently stands, our view is that if a non-negative test was returned that was above any specified cut of levels set out in a lawful policy, an employer could likely justify termination, presuming a fair and reasonable process was followed and there was a legitimate risk to health safety.   We suspect this may change as drug testing develops, however.

Can an employee reasonably be considered ‘under the influence’ if they return a non-negative result for cannabis effected by a one-off urine test?

At this stage ‘yes,’ but we suggest this may change moving forward.

It is somewhat common for employment agreements and/or drug and alcohol policies to explicitly state that attending work ‘under the influence’ of drugs and/or alcohol is prohibited – or similar words to this effect.   

Experts for each party gave evidence in the above Authority matter about whether the employee was ‘under the influence’ whilst at work. The two experts agreed that the one-off urine test could not, among other things:

(a)  confirm impairment due to cannabis at the time of donation; and

(b)  indicate the time, dosage, frequency, and potency of previous cannabis use.

Notwithstanding this, the Authority concluded that the employee was ‘under the influence’ for the purposes of the employer’s policy. In essence, it appears the Authority gave a purposeful interpretation to the meaning of ‘under the influence’ that takes into consideration the significant health and safety obligations placed on employers that operate in safety ‘critical/sensitive’ industries.

Why are employers found to have unjustifiably dismissed an employee, when they have returned a non-negative result for cannabis – or even admitted to ingesting it?

Procedural defects are often the culprit. Testing for drugs and alcohol must be conducted in accordance with an adopted policy:  TO. A.  T.  The Authority recently found that, despite an employee returning a non-negative result that was above acceptable cut off limits and admitting to using cannabis, because the employer’s process was procedurally unjust, the dismissal was unjustified and ordered remedies accordingly – around $20,000.

The lesson:  make sure to follow an adopted policy. Every. Single. Part. Of. It. Furthermore, ensure that the ordinary matters relating to disciplinary action are genuinely considered, such as whether there are reasonable alternatives to dismissal. Remember, termination may not be the only option.

Do employees need to disclose if they are using cannabis?

If the employee holds a role that includes safety sensitive work, then our view is that the employee has a positive obligation to disclose use – even if medically prescribed.

How we can help?

Drug and alcohol in the workplace can be a complicated area to navigate. We will simplify it for you.

Some things that we can assist with are: 

• Lawfully implementing a drug and alcohol policy. Such policies cannot be adopted as of right. They must be lawful, reasonable, and consulted on;
• Drafting drug and alcohol policies;   
• Understanding the implications of not testing for drugs and/or alcohol in the workplace; 
• Lawfully suspending an employee;
• Selecting the right type(s) of testing; 
• Rehabilitation programs; 
• Ensuring contractual terms provide for appropriate and lawful steps in relation to drug and alcohol testing;
• Taking lawful action against an employee(s) when returning non-negative test results;
• Defending a claim that the action taken against an employee for returning a non-negative test was unlawful; and/or
• Reviewing current policies/handbooks, agreements, and processes to ensure they are fit for purpose.

If you would like to assistance with the above, please contact our Employment team on 03 441 2743 or at enquiries@toddandwalker.com.

Disclaimer:  this article does not express views on whether the current state of the law is right or wrong. It simply puts forward the current legal position as we understand it and where we think it is likely to head. It is without doubt that social norms and perceptions of cannabis are changing, which may see a change in how cannabis in the workplace is approached in the future. We also understand that the Authority determination we have referred to above is subject to a challenge to the Employment Court.