Medicinal cannabis use is increasing in Australia, and employers are seeing more disclosures from employees.
This creates safety and discrimination issues in the workplace which employers need to carefully manage.
An employer can request further medical information to determine whether the employee can safely perform the inherent requirements of their role
Safety risks of Medicinal Cannabis Use
Employers have duties under both work health and safety legislation and at common law, to ensure employees who use medicinal cannabis can perform their duties safely without risk to themselves or others.
Risks arise in relation to employees who take medicinal cannabis and perform high risk work (e.g. operating heavy machinery, working from heights or construction work) or who are required to operate a vehicle as part of their duties.
The same issues arise in relation to any disclosure of a prescribed drug that may have side effects which affect an employee’s ability to perform their role. Communication is required and a process should be followed, even to confirm that there are no side effects that affect the employee.
If there is a safety incident involving an employee who has a medicinal cannabis prescription a safety regulator will be particularly interested in identifying:
- whether the employer knew or ought to have known the employee was taking medicinal cannabis;
- whether it conducted a risk assessment in that regard;
- whether it made enquiries to obtain further information about the prescription to control the risk; and
- what controls were put in place (e.g. drug testing or reallocation of duties) to manage the risk.
Driving Offences Relating to Medicinal Cannabis
Driving or attempting to drive a vehicle while THC (the principal psychoactive compound present in medicinal cannabis) is present in a person’s blood or saliva is an offence in most States and Territories.
Therefore, if an employer knows an employee is operating a vehicle to perform their work (e.g. travelling between job sites) and may have THC in their system, this may increase any employer’s risk of liability if the employee is involved in a motor vehicle incident, particularly if someone is injured or killed.
Discrimination risks with Employees Using Medicinal Cannabis
Employers must take care when dealing with employees who are prescribed medicinal cannabis because this is a protected attribute – employees cannot be treated unfavourably because of their prescription.
It is a defence if the action taken by the employer is to ensure the employee can perform the inherent requirements of the role or to comply with a safety law, but this needs to be carefully managed.
An employer can request further medical information to determine whether the employee can safely perform the inherent requirements of their role and, if they cannot, consider any reasonable adjustments the employer can make to facilitate this. For example, an employer might adjust the employee’s duties to avoid the use of a vehicle in the course of their work – if that is reasonable having regard to the impact on the employer’s operations.
Privacy considerations
Information about a medicinal cannabis prescription (and any prescription or medical condition) is sensitive information under the Privacy Act.
Employers must comply with the requirements of the Privacy Act when requesting this information, but once collected the information can generally be used to make decisions about whether the employee can safely perform their job and any adjustments that can be made.
Managing the risks
Employers whose employees perform high risk work should ask those employees to disclose any use of prescription drugs that may impact their ability to perform their role safely.
If an employee discloses their use of medicinal cannabis, the employer should:
- Direct the employee to limit their duties if necessary, pending a determination that the employee can safely perform those duties. For example, a direction not to perform high risk work or operate a vehicle in the course of their work pending the steps outlined below. If this means the employee cannot perform the inherent requirements of their role and there are no temporary duties they can perform, an employer can place the employee on unpaid leave in some circumstances – but employers should seek legal advice specific to the circumstances before doing so.
- Request further information to determine whether an employee can safely perform their role – for example, information from their doctor about whether the prescription includes THC, side-effects of use and whether the employee can safely perform the requirements of the role (with reference to specific duties).
- If it remains unclear whether the employee can safely perform the inherent requirements of their role, it may be necessary to direct the employee to attend an independent medical assessment to obtain that information. This can also help identify whether there are any adjustments the employer can make to the employee’s role to accommodate the prescription.
- Conduct a WHS risk assessment and decide on any appropriate steps to ensure the employee can safely perform their role. If there are substantial changes to the role, or there are no apparent adjustments that can be made which means the employment cannot continue, this will need to be carefully managed with legal advice to manage the risk of a discrimination, unfair dismissal or general protections claim.
Steps employers should take
Employers should be aware of their rights and obligations when an employee discloses they are taking medicinal cannabis, and navigate the situation carefully due to the discrimination risks.
Batch Mewing Lawyers assists employers with policies, advice and correspondence with employees regarding medicinal cannabis in the workplace.
Particular care should be taken when there could be an adverse outcome for the employee who has made the disclosure, because this exposes the employer to a discrimination, general protections claim or unfair dismissal claim.
Please contact our employment and safety law team if you require assistance.
