Cannabis and Human Resources Considerations in Thailand

Thailand’s recent removal of cannabis from the list of narcotics represents a significant development for the country, and it has some human resources teams wondering whether they should prepare certain measures in order to prevent detrimental incidents from happening in their organizations.

For example, some employees could still be under the influence of cannabis because they used it before coming to work. In the past, this was rarely a consideration as cannabis was clearly banned. Using cannabis or possessing cannabis inside the employer’s premises subjected employees to criminal liability including imprisonment and fines.

However, now that the government has removed cannabis from the narcotics list under the Narcotics Act, such incidents are more likely to occur. This likelihood has led to concern among many employers about how they can prevent or handle these incidents.

An employer does have the right to prohibit any employee from bringing cannabis inside its premises, as it is the property of the employer. The employer has the management right to do this, particularly as an employee’s use of cannabis may very well disturb other employees. But if the employer would like to set penalties for breaching the prohibition, the picture is more complicated.

Employers’ Work Rules

Under the Labour Protection Act (LPA), an employer who has at least 10 employees must have Thai-language work rules. These work rules must include the following items:

Specification of working days, regular working hours, and rest periods;
Holidays and rules for taking holidays;
Rules concerning overtime work and work on holidays;
Arrangements for payment of wages (i.e., schedule and location);
Overtime pay, holiday pay, and holiday overtime pay;
Leave and rules for taking leave;
Discipline and disciplinary actions;
Submission of grievances; and
Termination of employment, severance pay and special severance pay.
To issue or amend work rules (e.g., to introduce cannabis-related rules), employers must:

Announce the implementation of work rules within 15 days of the employer having 10 or more employees, or of the date the work rules were amended;
Keep work rules and any amendments to them on the premises at all times; and
Openly post work rules or amendments at the employees’ workplace. Employers may also make the work rules or amendments available electronically.
Employers used to be required to send a copy of the work rules or amendments to the director general of the Labour Protection Office (or a designee), but the LPA provision regarding this was revised in 2017 to eliminate this requirement.

However, greater input is required for changes to work rules that would impact employees’ employment conditions. Under the Labour Relations Act (LRA), employers may not unilaterally change the conditions of employment.

The term “conditions of employment” is a broad concept under Thai law, and includes everything from the obvious (wages, welfare, working days, hours, etc.) to less obvious items such as rules about submission of employee complaints, termination of employment, disciplinary measures, amendment of the work rules, and other conditions in the workplace that have become obligatory by contract or practice. For example, the criteria underlying a variable bonus could be considered a condition of employment, and these could be difficult to modify if the employer has not expressly reserved that right in writing. Similarly, certain welfare benefits provided to employees, such as a shuttle service, can become conditions of employment.

Any employer that would like to change its work rules in a way that impacts the employment conditions must either follow the relevant LRA procedure by submitting a labor demand to the employees or seek consent from the employees. However, if the work rules contain clauses in which the employer reserves the right to change the work rules in the future, then the employer may change the work rules that do not impact the employees’ conditions of employment. For example, if the work rules state the number of staff in each department, the employer can change these numbers so long as the change does not impact the benefits of the employment conditions.

Therefore, as mentioned above an employer may prohibit cannabis from the premises, but if the employer also intends to state that any employee bringing cannabis inside the premises will be terminated (or face other penalties), the announcement would be considered to have an impact on the employment conditions. As discussed above, this cannot be done unilaterally. Therefore, the employer must proceed with the relevant LRA procedure by submitting a labor demand to the employees or seek consent from the employees.

By Tilleke & Gibbins, Thailand, a Transatlantic Law International affiliated firm.

For further information or for any assistance please contact thailand@transatlanticlaw.com

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