High at work: will employers rights change if cannabis is legalised?
This week the government confirmed that a referendum will be held at the general election next year on whether cannabis should be legalised. The referendum will be binding, provided the current government is re-elected.
If cannabis is legalised, what does this mean for employers? Will employers have to accept employee’s turning up to work stoned?
The short answer is no. Just as employers can currently insist that employees do not come to work under the influence of other legal substances such as alcohol, they will be able to (or continue to be able to) insist that employees do not come to work under the influence of cannabis. What will change is the ability to rely on the argument that “it's illegal and therefore not acceptable in our workplace” to justify a zero or low tolerance policy. Instead, employers will need to look to the actual impact of employees attending work under the influence of cannabis use to justify low or zero tolerance policies. This will be straightforward in any business with safety sensitive roles.
In addition, just as employers can seek information from prospective and current employees regarding any medication they take that may impact on their ability to perform their role, employers will be able to seek the same information in relation to medical cannabis use.
Further consideration will need to be given to whether any level of cannabis is acceptable, and if so what that level is (for example for employees using cannabis recreationally on the weekend, and for medicinal purposes)
However, in order to do either, employers will need to ensure that their employment agreements and policies accurately and adequately deal with the issue, and as with all legal documents the devil is in the detail. For example, specific agreement, usually by way of contractual provision, is required to test for drugs and alcohol in the workplace.
Employers have time to prepare for the possibility of legalised cannabis, but for now, it is a timely reminder to review employment agreements and policies, including drug and alcohol policies, to ensure they are up to date and fit for purpose.