Excellent questions. I look forward to some challenging answers.

My view is that the legality of the substance is irrelevant. Alcohol is a legal drug but has a far greater effect on impairment than marijuana.

If the reason for testing is to detect impairment then the legality of the substance causing the impairment is neither here nor there.

(However, if the real reason for testing isn't to do with impairment, but in eliminating from your workforce people who in their own time do things your organisation's management claims not to approve of, then you are playing a different game altogether.)

I agree Peter. I am not sure how ready HR around the country are for this. HRINZ will do their thing and every HR Law Firm will run presentations but for most businesses it will come down to what they do when the first issue arises.

Companies already have trouble with the concept of "random" , now they will need to improve on "reasonable cause" and "impairment".

A good recent development has been the approval of the AS/NZS 4760 standard, which sets out the process for drug testing through saliva. I believe this is more relevant for dealing with cannabis in the workplace as drugs detected in the saliva are going to a far greater indication of impairment compared to a urine test which can show detects for up to 30 days.

As Peter mentioned, the legality is impairment, not legality. The saliva test gives a greater indication of impairment.

Hello Chris,

I agree the salvia test will be more useful. I think it may lead to companies taking a tougher look at their alcohol policies as well.

I'm curious to see how this plays out in the realm of pre-employment screening as well.

If an employee is a recreational cannabis user, and it's not illegal, but it gets picked up in a pre-employment screen, how will employers treat this? What if they're a 'Zero Tolerance' environment and a screen picks up trace elements from past usage?

My understanding is that even with the recently released oral fluid testing A/NZ standard, there's not yet an accredited lab in NZ? I'd be grateful if someone in the know could correct me if I am mistaken.

I also recall that the expert evidence that has gone before the Employment Court previously was to the effect that you cannot, say, screen with an oral fluid test, and confirm with a urine sample. My understanding is that the two tests are not compatible.

I think this is answered by Peter's point. The focus is not on legality, but actual impairment (or perhaps better expressed as the 'risk of impairment').

From an employer's perspective, managing the risk of impairment avoids getting into an argument about actual impairment at the time of testing (for drugs, alcohol is more cut and dry). Unions are likely to see this differently, and argue actual impairment should be the standard, and it is not for an employer to enquire into the worker's activity outside of the workplace.

For my money, I think the Employment Court will take its lead from the Fair Work Australia decisions of late (as it had signalled back in 2012 in the Hayllar v GoodtIme Food Co case). Where there has been an advance in field of oral fluid testing - which those companies who are invested in urine testing will surely dispute - it may be more reasonable for an employer to require a OF test to screen for the presence of common drugs that more reliably indicate actual impairment at the time of testing.

I think Sam is on the right track. As far as I know there is no test anywhere in the world that can measure the degree of impairment by either alcohol or any other drug. Everybody responds to, and processes, drugs differently and therein lies the problem in trying to focus on impairment.

D&A Policies need to refer to the 'Risk of Impairment' and be focused on managing that risk.
While it may be argued that people should have the right to partake of recreational drugs in their own time, when that results in the person presenting for duty in a condition that poses a credible risk to themselves or others then employers have no option but to take action according to their D&A Policy. The most accurate evidence of a credible risk is the detectable presence of the drug in the body.

Another interesting question is how do we deal with positive test results. Our Policy has rehabilitation as its main focus, but when this fails to prevent a recurrence, dismissal is the usual remedy.

In answer to Michael's comment, salver testing may be more accurate, but it is a dead end at the moment as there is no accredited laboratory for the test in NZ. Comments from our staff (particularly the females) indicates they would find that less an invasion of their privacy than urine testing, so let's hope it becomes a viable option in the near future.

Various questions have been raised by Peter's question:
1. How will legalisation affect testing regime?
2. What detects impairment?
3. How effective will the new AS/NZS 4760:2019 be in managing risks around impairment

Simply legalising cannabis does not mean one can turn up for work in an unfit condition. Just as Peter said that alcohol is a legal drug which can cause a lot more harm than cannabis. As per CDC, the third leading preventable cause of death is alcohol in America.

Urine does not detect the psychoactive element and hence has no correlation to impairment. Police detect alcohol use through a breathalyser to see if the drug is still in our blood which can cause impairment. So does urine screen has any place in workplace safety regime when it can only detect historical use. Due to its lipophilic nature (lipo=fat, phyllic-loving) THC gets stuck to fat cells and is notorious for having the longest elimination time. ((Sharma et al., 2012))
On the other hand, if you use a saliva tool with great sensitivity, specificity and accuracy there are greater chances to detect the recent use during which one can be affected by the psychoactive nature of the drug. Hence, saliva can correlate to impairment but does not detect impairment.

Moreover, in Ilinois where medical cannabis is already legal, there has been an increase in stakes for trying to fake a pre-employment drug test. As per their law attempting to fake or tamper with their sample during a pre-employment drug screen is a felony in the state of IL. About a decade and a half ago, this wasn’t the case.

We need to build a culture of respect in an organisation and having a saliva regime will prevent cheating and getting a false sense of safety from drug abuse. When workers know that they will not be penalised for their historical use, AOD policy implementation will be a lot more effective.

AS/NZS 4760:2019- Procedure for specimen collection and the detection and quantification of drugs in oral fluid is now available from:
https://infostore.saiglobal.com/en-au/Search/All/?searchTerm=AS/%20NZS%204760:2019

Changing the matrix from saliva to urine is not as ideal as they both detect different elements. NZ didn't have saliva confirmatory process, although ESR started this in 2013 but there was not a huge uptake on this. Urine advocates always used the pretext "we dont have a standard" but now we do.

Yes, there are steps been taking by CHL to get the confirmation process set up for saliva which shouldn't take long.

Products for saliva screen will also take some time to be verified against the cut off as per the new Standard but there are some good tools out there already with the verification to old standards and using your due diligence you can compare them to the current requirement.

Training in oral fluid is also required, the collection and screening of results and despatch to a laboratory which also should not take long.

Standard is a minimum bar and having a standard has at least shown what sort of tools should be used. There are organisations who do saliva testing with tools that will never detect THC. It is a wake- up call and one should invest in the right tools that actually work towards workplace safety. When urine standard came out in 2008, there weren't any tools or training available at the start but were soon created. To use saliva as a first line of defence can still be a valid matrix in drug detection for recent use even though all the processes are not completely there. When changing the matrix to urine confirmation there should be some time built in between the oral fluid and urine to allow the drugs to be metabolised. Thank you Sam Houliston to point to Hayllar vs Good time food case and recent Port Kembla coal mine case by Fair works commission has argued the pros and cons of saliva and urine very vividly.

Feel free to contact me in relation to the new Standards.

I won't be doing anything.

Same approach as current. Don't care what you do in your private life.

Won't be implementing testing

But give us an indication you are impaired or not competent to carry out your job we will manage it.

Current approach is: impairment = sent to guidance / counselling etc. Caught selling. Fired.

Thanks CK, really useful. Is there a lab that can complete confirmatory oral fluid testing in NZ?

I am the HSE Manager of the Institute of Environmental and Scientific Research (ESR). ESR is currently developing a testing method. If anyone is interested, please let me know.

It's time we developed more appropriate testing regimes to assess cognitive impairment, which is the real risk, rather than focusing entirely on presence / absence / legal limits. The same criteria should also be applied for prescription and over-the-counter medications that have the same potential for cognitive impairment yet are largely ignored in most testing regimes.

I'm sure there are already tried and proven frameworks for measuring cognitive impairment already used in research conducted for example by military personnel researching effects of hypoxia (I watched an example on the Vlog "Smarter Every Day) that could be readily adapted to workplace assessments, and most would typically have their own framework for classifying what is acceptable and what is not.

Cognitive impairment should be assessed for both mental impairment (i.e., reasoning, judgement and decision-making) and physical impairment (i.e., coordination and motor skills).

I like Sheri's idea. I have tried in vain for several years to find a practicable solution to this issue. Perhaps Derek can help? I would be interested in such a project and happily assist with it.

I'm in the middle of this one, as I'm not only a product developer with clients wanting medicinal products designed and developed, I'm also an H&S consultant to many and varied companies (studio time keeps me sane amidst all the policies and legislation). So, I actually have qualifications and experience in several related areas; herbal medicine, aromatherapy, medicinal marijuana, science and health and safety. I did the master certificate in medical cannabis in 2016.
There have been a number of overseas companies working on this issue, two were very close to nailing it and I understand one is going to launch their product soon if they haven't already. However, initially I think cost will be prohibitive as they will be a machine and I'm confident they won't be cheap. That's what will be needed for roadside testing as well.

We recommend the common sense method when it comes to THC testing, as I'm aware of the issue of people changing to serious drugs as an alternative which leaves the body quickly. We recommend you just talk to your workers, look them in the eye and chat to them and if they seem affected then take it further. Up until then however, if you want to keep great staff who have a smoke at the weekend, consider saliva testing or just physical assessment.
That's of course, if your business is able to do that. Some need to comply with outside influences.