Managing medicinal cannabis in the workplace

Medicinal cannabis is becoming an increasingly popular treatment option for certain health conditions, including chronic pain. This trend however presents a challenge for employers who must balance supporting an employee’s injury whilst maintaining a safe and legally complaint workplace.

This article outlines the current law surrounding medicinal cannabis, along with key guidance for employers navigating the use of medicinal cannabis in their workplace.

Current legal framework for medicinal cannabis

Medicinal cannabis was legalised in Australia in 2016, allowing medical practitioners to prescribe certain cannabis products to patients.

Use of medicinal cannabis in Tasmania is only lawful where the cannabis product is legally manufactured and prescribed by a medical practitioner for a therapeutic purpose.

Medicinal cannabis products typically contain Delta-9-Tetrahydrocannabinol (THC), Cannabidiol (CBD), or a combination of both. While CBD is not generally thought to create an intoxicating effect, cannabis products containing THC are known to cause psychoactive effects that have the potential to produce a functional impairment, commonly referred to as a ‘high’.

What should employers do?

Key takeaways

• Policy and Procedure: ensure that there are adequate policies and procedures in place to manage prescription, non-prescription, and illicit drug use in the workplace, and review them regularly to ensure legal compliance.
• Consultation: consult employees when creating or updating workplace drug policies and genuinely consider any feedback received.
• Education: conduct regular training with employees about their obligations under workplace drug policies, and the consequence of non-compliance.
• Advice: seek advice before taking action against an employee on the basis of their drug use in order to reduce the risk of discrimination and adverse action claims.

Analysis

The potential functional impairment caused by medicinal cannabis products containing THC can create complex issues for employers, particularly where an employee performs safety critical work. This may include where an employee works in high-risk environments or is required to operate vehicles and machinery as part of their role.

Notwithstanding this risk, employers must be cautious in implementing zero-tolerance drug policies. While such policies may be justified in safety critical workplaces, a zero-tolerance approach risks becoming discriminatory when applied broadly against employees with legitimate medical conditions and limited alternative treatment options.

In relation to medicinal cannabis, recent court decisions have emphasised that it may be unlawful for an employer to dismiss an employee solely because of their use of such products. Employers must therefore ensure that before taking steps to discipline an employee whose medication use may be impacting their ability to do their role, they have:

• Adequate policies in place regarding the use of medications in the workplace: drug policies should cover both prescription, non-prescription, and illicit, drug use in the workplace. These policies should:
  • be the subject of regular review to ensure they remain legally compliant and consistent with modern understandings of medication use.
  • require employees to notify their employer where they are prescribed medication that could impact their ability to undertake their duties, or to do so safely.
  • set out practical and enforceable steps for managing medication-related issues. These may include mandatory drug testing, procedures enabling employees to be stood down, and requirements to produce medical information to their employer or undergo independent medical examinations.
• Consulted and educated employees on workplace policies: employers should consult with their employees when creating or updating workplace drug policies – particularly where a breach of those policies can lead to disciplinary action – and genuinely consider any feedback received.
  • If employees are covered by an award or enterprise agreement, employers may be legally required to consult on changes to workplace policy.
  • Instructing employees to simply read through a policy is unlikely to be sufficient. Employers should conduct training for staff and managers to ensure that everyone in the workplace understands their obligations and the consequences of non-compliance. Refresher training should also be provided, particularly where changes are made to the relevant policy.
• Assessed each case individually to identify and manage potential risk: when dealing with employees who use a medicinal cannabis product, a one-size-fits-all approach rarely works. Employers should assess at each situation individually, taking into account the safety risks unique to each workplace and employee, any requirements under industrial law, and whether or not the risk posed by an employee’s medication use can be mitigated with reasonable adjustments to their role.

Practical steps

If an employer believes that an employee’s use of medicinal cannabis is impacting their ability to undertake their duties, or to do so safely, they should consider taking the following steps:

• Conduct a risk assessment: carry out a comprehensive risk assessment, particularly where the employee performs safety-critical work, and implement strategies to reduce risks in the workplace without unnecessarily disadvantaging the employee.
• Confirm obligations under industrial laws or instruments: review any applicable enterprise agreement, award, or employment contract that may apply and any steps required to be undertaken before action is taken against an employee.
• Seek medical information: request medical information from the employee’s doctor or arrange an independent medical examination to understand the impact that their medication is, or may be having, on their ability to undertake their duties safely.
• Ensure compliance with local laws: if the employee is required to drive or operate vehicles or heavy machinery as part of their role, ensure they are complying with any relevant local laws. In Tasmania, it can be an offence for a person to drive with any detectable amount of THC in their system.
• Avoid unlawful discrimination: before taking steps that may disadvantage an employee whose medical condition is being treated with medicinal cannabis, employers should ensure that taking such steps do not breach anti-discrimination legislation. Explore whether reasonable adjustments can be made to support any employee using medicinal cannabis while maintaining a safe workplace.
• Ensure procedural fairness is observed: if an employer determines that an employee has breached a workplace policy relating to drug use, ensure any investigation or disciplinary action is conducted in a procedurally fair way.

Page Seager regularly assists employers in developing robust drug and alcohol policies and providing guidance on managing situations where an employee’s ability to perform their role is being affected by the use of medicinal cannabis.