With the legalisation of medicinal cannabis in Australia, employers are increasingly confronted with complex challenges, particularly in balancing their obligations under Work Health and Safety (WHS) laws and the rights of workers who use prescribed medicines. The evolving regulatory landscape, coupled with uncertainties around the effects of medicinal cannabis impairment, demands careful consideration from employers, especially in sectors where safety-critical roles are involved.
The legislative landscape
The legalisation of medicinal cannabis (at the federal level) began in Australia in February 2016, with subsequent amendments across states and territories allowing access to medicinal cannabis through regulated prescriptions.
While this legislative shift has provided new treatment options for individuals with conditions like chronic pain and anxiety, it also raises significant compliance challenges for employers, who have a duty to ensure, so far as reasonably practicable, a safe working environment for all workers, which includes managing the hazards and risks associated with a worker’s use of medicinal cannabis.
Employers are expected to conduct risk assessments to identify hazards, particularly those related to impairment. However, there remains a grey area as to how to accurately assess impairment caused by medicinal cannabis, making it difficult for employers to define and manage such risks in the workplace.
The impact of impairment
In this regard, the most significant challenge for employers arises from the fact that there is no reliable, objective test to determine the level of impairment caused by medicinal cannabis. This is further complicated by the way cannabis is metabolised by individuals, as the psychoactive component of cannabis, (tetrahydrocannabinol or ‘THC’), affects individuals in varying ways, and the impact of these effects can be difficult to quantify, even with advanced testing methods.
While the primary concern for employers is ensuring that employees are not impaired while performing safety-critical tasks (such as work that is defined as high risk), the absence of a reliable, objective test for impairment complicates this considerably.
Unlike alcohol, where blood alcohol concentration (BAC) can be easily measured to provide a relative indication of impairment, no such standard exists for medicinal cannabis. THC can remain detectable in the body for days or even weeks, long after its impairing effects have subsided. Further to this, the level of THC in medicinal cannabis varies greatly, ranging from a THC concentration of just 2% all the way up to 98%.
Current testing methods, such as urine or oral fluid tests, only detect the presence of the drug, not whether the individual is impaired at the time of testing. This creates a significant problem for employers, as a positive test result for THC does not necessarily mean that the worker is unfit for performing high risk work. While THC can remain detectable in the body for several days, impairment may last for only 8 to 10 hours. As such, an employee may test positive for THC long after the impairing effects have worn off, leading to potential conflicts when applying workplace drug and alcohol policies.
This issue is particularly pressing in safety-critical industries, such as construction, transport, and manufacturing, where even the slightest level of impairment can pose significant health and safety risks. Given that there is currently no universally accepted standard for impairment testing, employers must instead navigate a complex environment where a positive drug test result may not necessarily indicate that an employee is impaired or otherwise unfit for work.
Challenges in developing and applying workplace policies
Employers face challenges in developing clear and fair drug policies that cover and manage workers who use prescribed medicinal cannabis. Key issues that a policy may struggle to address include:
- Defining Impairment: without a reliable test for impairment, employers often grapple with how to define ‘impairment’ in their policies. Some organisations try to rely on observable signs of impairment, such as difficulty concentrating or changes in behaviour, while others adopt stricter “zero-tolerance” policies that apply to any detectable level of THC in the system.
- Disclosure Requirements: employers can require employees to disclose their use of prescribed medicinal cannabis, particularly if they are in safety-critical roles. However, consideration must be had to procedural fairness following the disclosure or use of legally prescribed medication. Disclosure accuracy may also be questioned where workers are hesitant in disclosing their use depending on the type of safety-critical or high risk work they are engaged in, when there is a likelihood that in order to perform their work they must return a negative test.
- Balancing Safety and Fairness: while employers are legally required to maintain a safe workplace, overly harsh workplace policies may lead to unfair treatment of employees who are using prescribed medicinal cannabis to manage serious medical conditions. It is essential to balance the need for safety with the rights of workers who are prescribed cannabis.
A recent case study
A recent unfair dismissal decision[1] serves as an important illustration of the complexities employers face when managing employees prescribed medicinal cannabis. In this case, a stevedore who was prescribed medicinal cannabis failed to disclose his use of medicinal cannabis to his employer and later returned a non-negative result in a random drug test. He was dismissed for breaching the company’s drug and alcohol policy, which had been in place for over a decade.
The employee argued that he was capable of performing his duties safely and without risk, but his application was ultimately rejected by the Fair Work Commission, which found that the stevedore’s failure to declare his prescription and the significant amount of THC detected in his system (42 times the standard cut-off) were valid grounds for dismissal, especially given the safety-critical nature of his role.
The Commission noted that while the employee’s long service may warrant some sympathy, it did not excuse significant breaches of company policy, particularly when those breaches could compromise workplace safety. This case highlights the need for employers to implement clear policies regarding medicinal cannabis use and the importance of communication between employees and employers to ensure compliance with safety protocols.
Moving forward: recommendations for employers
Given the rapid increase in medicinal cannabis prescriptions in Australia—more than 1 million in 2024 so far—employers must be proactive in addressing the challenges associated with its use in the workplace.
Some key steps for employers include:
- Education and Training: employers should ensure that both management and employees are educated on the potential risks associated with medicinal cannabis use and the importance of reporting prescribed drug use, particularly in safety-sensitive workplace environments.
- Policy Development: employers should regularly review and update their drug and alcohol policies to reflect the changing legal and medical landscape of medicinal cannabis. Policies should be flexible enough to accommodate prescribed use while maintaining appropriate safety standards.
- Monitoring Emerging Technologies: as new methods for testing impairment become available, employers should stay informed and consider adopting these technologies to ensure fairer and more accurate assessments of employee fitness for work.
The legalisation of medicinal cannabis in Australia represents both an opportunity and a challenge for employers. While it offers many workers an alternative treatment for chronic conditions, it also presents significant risks, particularly in industries where safety is paramount.
Employers must strike a careful balance between upholding their WHS obligations and supporting workers who are prescribed medicinal cannabis. By developing clear policies, fostering open communication, and staying informed on advancements in impairment testing, employers can navigate this evolving landscape more effectively.
[1] Michael Gauci v DP World Brisbane Pty Limited [2024] FWC 2351
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The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.