Medical cannabis in the workplace – risks and challenges for employers

With an increasing number of employees taking prescribed medical cannabis in the workplace, it is important for employers to understand their legal obligations when managing these employees.

Is medical cannabis legal in Australia?

Amendments were made to Commonwealth and state legislation in 2016 to enable authorised medical practitioners to legally prescribe medical cannabis to patients for certain conditions. In 2017, the Australian Register of Therapeutic Goods recorded that 261 patients were treated with medical cannabis by an authorised prescriber, which increased significantly to 986,701 patients in 2022.[1]

Medical cannabis products generally contain either Delta-9-Tetrahydrocannabinol (THC) or Cannabidiol (CBD), or a combination of them. THC is the cannabinoid that contains psychoactive properties and therefore produces a ‘high’ sensation. CBD does not produce the ‘high’ sensation that is associated with THC. The regulations relating to medical cannabis differ depending on the percentage of THC contained in the product.

Over the last few years, employers have experienced an increasing number of employees taking medical cannabis either before attending work or while in the workplace. Even if the medical cannabis is legally prescribed, the situation can be complex for many employers, especially when employees are driving vehicles, operating machinery, or working on mine or construction sites.

How should employers deal with employees taking medical cannabis in the workplace?

There is a common misconception among many employers that employees can be dismissed from their employment if they are taking medical cannabis. However, this is not always the case.

If an employee is taking medical cannabis that is prescribed by their medical practitioner, employers must deal with these employees in the same way as employees taking other prescribed medication.

If it is reasonable in the circumstances, employers may direct an employee to provide evidence from their medical practitioner that the employee is fit to perform their duties.

This evidence is commonly provided in the form of a medical certificate, which will generally state the employee’s prescription, whether the employee is fit to perform their duties, and any limitations on the employee’s performance of their duties (for example, that the employee cannot drive a vehicle or operate machinery within 12 hours of taking the prescribed medical cannabis).

Employers should review the medical certificate to determine whether the employee can perform the inherent requirements of their role. When undertaking this process, employers should make sure they comply with applicable anti‑discrimination legislation and workplace policies, the employment contract and any applicable industrial instrument.

What are the risks associated with dismissing these employees?

There are several risks associated with dismissing an employee for taking medical cannabis in the workplace without first determining whether the employee is fit for work.

Unfair dismissal claim

An employee may lodge an unfair dismissal claim and allege that their dismissal was harsh, unjust or unreasonable. Whether a dismissal was unfair will depend on various factors, including whether there was a valid reason for the dismissal relating to capacity or conduct and the procedures followed by the employer when effecting the dismissal.

In circumstances where an employer does not have evidence from the employee’s medical practitioner indicating that the employee was unfit to perform their duties, it will be more difficult for the employer to establish that there was a valid reason for the dismissal relating to capacity.

Discrimination

An employee may bring an anti-discrimination claim and allege that they were treated less favourably because of their disability or impairment. Whether an employee has been unlawfully discriminated against will depend on various factors, including whether the employer made ‘reasonable adjustments’ for the employee.

Reasonable adjustments can include adjusting work methods and work arrangements; however they do not include changing the inherent requirements of a role or transferring the employee to a different role.

When can a disciplinary process be commenced?

Although medical cannabis is legal when prescribed appropriately, an employment contract or a workplace policy may still require employees to disclose whether they are taking any prescribed medications that could affect their safety or performance at work. Employers may also have a workplace procedure dealing with drug and alcohol testing requirements.

Employers may be able to commence a disciplinary process if an employee:

• refuses to comply with a lawful and reasonable direction, for example, by refusing to provide evidence that they are fit for work
• is unable to perform the inherent requirements of their role
• contravenes a term of their employment contract or a workplace policy or procedure.

What precautionary steps should employers take?

Regardless of whether an employee is taking medical cannabis or other prescribed medications, employers should obtain up‑to‑date medical evidence of the employee’s fitness for work when determining whether the employee can perform the inherent requirements of their role and when considering reasonable adjustments.

Employers should also ensure that their drug and alcohol policies and procedures are up to date and enforced consistently across the workplace.

If you have any questions about managing medical cannabis in the workplace or need assistance with updating your policies or procedures, please contact a member of our workplace relations and safety team.

[1]           http://www.tga.gov.au/products/unapproved-therapeutic-goods/medicinal-cannabis-hub/medicinal-cannabis-access-pathways-and-patient-access-data/medicinal-cannabis-authorised-prescriber-scheme-data