The rise in medicinal cannabis use has introduced new challenges for HR professionals, particularly in safety-sensitive industries. With changing legislation across Australia, it is critical for HR managers to balance the rights of employees prescribed medical cannabis with the need to ensure workplace safety.
The Legal Framework for Medical Cannabis in Australia
Recent legislative changes allow medical practitioners in Australia to prescribe medicinal cannabis for various conditions. Medicinal cannabis products generally contain either Delta-9-Tetrahydrocannabinol (THC), which has psychoactive properties, or Cannabidiol (CBD), which does not. This distinction is crucial when developing workplace drug policies.
In most workplaces, CBD-only treatments may be permissible, especially in industries that are not safety-sensitive. However, THC, due to its psychoactive effects, is often prohibited, especially in roles that involve operating machinery, driving, or any task where impairment poses a risk to safety.
The Challenge of Safety-Critical Roles
A growing number of employees now use medical cannabis, sometimes before or during work. This presents unique issues in jobs where safety is a top concern, such as operating heavy equipment or handling hazardous materials. HR managers must develop policies that address the specific risks posed by the use of THC, while still allowing for the responsible use of prescribed CBD in appropriate contexts.
Employer Responsibilities and the Importance of Policy Adherence
Employers are obligated to treat medicinal cannabis as they would any other prescription drug. This involves securing up-to-date medical documentation to confirm an employee’s fitness for duty, especially in safety-critical roles. However, the situation becomes more complex when employees fail to disclose their use of medical cannabis or when THC is involved.
A pivotal case that highlights the importance of strict policy adherence is the recent Fair Work Commission (FWC) ruling involving a stevedore at a Brisbane-based logistics company. The worker, who had nearly two decades of experience, tested positive for THC during a routine drug test, despite having a legal prescription. Although he believed that his medication did not impair him, and that he had taken it at a time that would not affect his work, the employee had failed to inform his employer about his prescription.
The FWC ruled that the worker’s dismissal was justified—not because he was impaired at work, but because he had violated the company’s Alcohol and Other Drugs (AOD) policy by not declaring his medication. This case underscores a key point for employers: while medicinal cannabis is legally prescribed, failure to adhere to workplace policies, particularly in safety-sensitive industries, can still be grounds for dismissal.
Practical Steps for HR Managers
To navigate the evolving landscape of medicinal cannabis in the workplace, HR managers need to ensure that their policies are up to date, clear, and enforced consistently. Below are five critical steps to help HR teams manage this issue effectively:
- Review and Revise Workplace Policies
Regularly update drug and alcohol policies to explicitly address the use of prescribed medications, including medical cannabis. Ensure that the policies are clearly communicated to employees and applied consistently across the organisation. - Educate the Workforce
Provide ongoing education to employees about their responsibilities under company policies. It’s crucial to highlight the need for workers to disclose prescribed medications that could affect their job performance or safety. In safety-sensitive roles, this is especially important, as a failure to disclose can lead to legal and safety issues. - Balance Safety with Employee Rights
While workplace safety must always come first, employers also have a duty to accommodate the legitimate medical needs of their employees. HR managers may need to consider reasonable adjustments, such as assigning non-safety-critical tasks to employees using medicinal cannabis. However, each case must be assessed individually to ensure that the business remains compliant with safety standards. - Obtain Medical Evidence
When an employee discloses that they are using medicinal cannabis, HR should require medical evidence to assess the employee’s fitness for their role. This documentation is key to determining whether an employee can safely continue to perform their duties without compromising workplace safety. - Prepare for Legal Challenges
As medicinal cannabis becomes more widely used, legal challenges related to workplace policies are likely to increase. To mitigate risk, it is essential that HR policies are regularly reviewed and that employers handle all related issues with care and transparency. In addition to policy reviews, HR managers should ensure that their practices are in line with anti-discrimination laws and that they can provide evidence supporting their decisions.
Looking Ahead: The Future of Medical Cannabis in the Workplace
As the use of medicinal cannabis becomes more prevalent, employers must take a proactive approach to balancing workplace safety with employee rights. For HR professionals, the key is developing clear, enforceable policies that account for the legal use of medicinal cannabis while maintaining the highest standards of workplace safety.
By staying informed, updating policies, and educating employees, HR teams can navigate this evolving issue and create a safer, more compliant workplace for everyone involved.
Disclaimer: The information provided in this blog was accurate at the time of writing and is intended as general advice. For specific advice, please call AHR on 1800 577 515.
