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Weeding out workplace hazards: Is medicinal cannabis safe in your workplace?

12 December 2023

#Workplace Relations & Safety

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Weeding out workplace hazards: Is medicinal cannabis safe in your workplace?

The increase in doctors prescribing medicinal cannabis to treat a variety of medical conditions is a budding issue for workplaces. The central question is, can an employee use medicinal cannabis and still safely perform their role?

It is undoubtedly a tricky area to manage and employers need to proceed with caution. There are some key considerations that businesses should explore before taking any action that may help minimise the risk of a discrimination claim or similar.

Medicinal cannabis in Australia

There are currently only two approved medicinal cannabis products registered on the Australian Register of Therapeutic Goods, administered by the Therapeutic Goods Administration (TGA). One of those products contains both delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD). The other is an oil which contains CBD only. There is also a range of unapproved medicinal cannabis products in Australia which can be obtained through ‘special access’ pathways approved by the TGA.

The main difference between THC and CBD is that the THC component has strong psychoactive effects that produce a ‘high’ sensation or a feeling of euphoria. On the other hand, CBD is non-intoxicating.

At the time of writing this article, there are currently no safe recommended limits of THC due to its psychoactive effects and no guidance from regulators on how to safely manage medicinal cannabis in the workplace. It is also worth noting that, for example in Queensland, the use of medicinal cannabis is a non-approved treatment intervention in respect to the WorkCover / workers’ compensation scheme.

The work environment

Under their applicable workplace health and safety legislative scheme, Australian businesses have specific duties to provide employees with a safe work environment. Additionally, businesses must ensure the health and safety of others (i.e., members of the public) are not put at risk due to the conduct of the business. Both are incredibly important considerations when considering managing prescribed medication in the workplace.

The first step is for businesses to be very clear on what their “business or undertaking” is. The lines can often get blurred but it is important to know exactly what your business does and what it is responsible for to properly determine and assess the risk to the business. For example, whether a call centre or library can safely manage employees utilising medicincal cannabis will be completely different to whether a hospital or construction company can safely manage employees. One of the main factors will be the type of medicinal cannabis being utilised and whether there is sufficient medical evidence to support that it is safe within the specific workplace.

If your business performs ‘high risk’ work – for example traffic controllers or crane operators – and an employee discloses the use of medicinal cannabis which contains THC to treat a condition, can they safely continue to perform their role? There is no quick and easy answer. We would recommend that businesses consider:

  • what are the inherent requirements of their role?
  • what potential side effects are there from use of the medication?
  • how often does the employee use the medication and do they need to use it during work hours?
  • are there any laws that need to be considered regarding the use of the medication and the duties in their role?
  • what are the risks to the employee in continuing to perform their role whilst using the medication?
  • what are the risks to others in allowing the person to continue performing their role whilst using the medication?

To address some of these considerations, the employer could send the employee for an independent medical examination. Employees may present a medical certificate or letter from their general practitioner which states that it is safe for them to continue to work whilst on the prescription. However, given the lack of medical evidence available on medicinal cannabis, unless the general practitioner is also a medical specialist in that field, a business does not need to accept that letter as a sufficient basis to take no further action.

It will also be important for the business to have undertaken a risk assessment, either for that employee or generally for anyone performing that role.

An example of a law to be conscious of is that it is currently illegal for people taking medication containing THC to drive. Therefore, if an inherent of the requirement of the role is to operate a vehicle or machinery, it is appropriate to stand that employee down whilst the business assesses the impact of the medication on their role. Though the employee may argue that is discrimination, it is not appropriate for businesses to knowingly allow an employee to continue working where it has full knowledge that in doing so, that employee is breaking the law.

It is important for businesses to deal with this matter in the same way that they would for any other prescribed medication that is declared by an employee. That includes ensuring that they take reasonable steps to understand the impact of the medication and consider what, if any, modifications can be made to allow the employee to continue in their role. The disclosure of the use of medicinal cannabis should not result in an automatic loss of job or stand down.

In our view, there will inevitably be some businesses that simply cannot permit a person utilising a medication containing THC to continue performing the role until full enquiries have been made and completed. This is particularly so, given the evidence that it impairs users and the lack of evidence to support a safe amount or dosage of THC to avoid impairment. Until there is law reform to accommodate these types of medications or substantial medical evidence to support safe use, hard decisions will have to be made.

It is also inevitable that some businesses will face a claim of discrimination or unfair dismissal. Whilst it cannot be avoided, businesses can take steps to ensure that they are best placed to defend any action that arises in the future including:

  • ensure that your human resources team is well trained in best practices for managing employees, including fair processes
  • ensure that your investigations and decision-making are well founded, supported and documented
  • seek assistance from appropriately qualified throughout the process, as needed.

Businesses should also remember that you do not need to wait for the issue to arise in your business before turning your mind to it. Ensure that your policies and procedures are up to date and sufficiently deal with the issue. A proactive approach to safety is best practice; so get ahead and start thinking about how your business can or would manage this issue and reach out to our team below if we can be of assistance.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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