Medicinal Cannabis in the Workplace – what do Employers need to know?
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Medicinal Cannabis is legally prescribed in New Zealand, and for some employees it forms part of their medical treatment. For those employees, it is a prescription only medicine, accessed solely from a registered medical practitioner. Some medicinal cannabis products contain THC, which may cause impairment, while others such as CDD-only products, do not cause impairment and most importantly are not detectable in standard drug tests.
Frequently Asked Questions.
Do employees have to advise their employer that they have been prescribed medicinal cannabis?
Employees have a duty to disclose to their employer, at the time of first being prescribed, that they are taking medicinal cannabis. When prescribed, the medical practitioner is required to provide the employee with a letter confirming the prescription with the employee then having an obligation to provide the notification to the employer. The employees’ terms and conditions of employment, or the company Health and Safety Policy, can contain a provision requiring such a notification. Disclosure may however be restricted to notification of medicinal cannabis products containing THC.
Can an employee face disciplinary action for using medicinal cannabis?
Any potential disciplinary action will always be proceeded by the completion of a procedurally correct drug test undertaken by a certified testing agency. For the test to be administered the employer will either be utilizing the random testing provisions within their Health and Safety Policy, or the employee would have been subjected to the testing based on a reasonable belief that the employee was or had been taking illicit drugs. It is important to remember that the detection of an illicit substance may not always imply impairment.
Where the presence of a THC containing medicinal cannabis product is detected, the employee may be subject to formal disciplinary action. Generally, such disciplinary action related to either (1) the failure of the drug test – this being above the safe cutoff levels prescribed within the Aus/NZ standards, or (2) a Breach of the Health and Safety Policy for failing to provide notification of the prescribed medicinal cannabis. Formal disciplinary action that may lead to the termination of employment is more likely to occur where the employee works within a safety sensitive role or workplace.
Can an employee raise a personal grievance for being dismissed for using medicinal cannabis?
While the employee can raise an unjustified dismissal claim this would generally only be successful if the employer did not have justified reason for requiring the employee to submit to the drug test, the company policies were not clear on the employee’s obligations regarding reporting medicinal cannabis use, or the employer’s disciplinary process was flawed.
Given the employer’s obligations to ensure that they maintain a safe work environment for all staff, dismissal of an employee for failing a drug test where medicinal cannabis has been detected, can be lawful.
What documents should an employer have in place so employees know the rules around the use of medicinal cannabis?
To support the application of drug testing or a formal disciplinary process, the employer will need to have a robust Drug and Alcohol policy (detailing the obligations for the employee to advise the employer if they have been prescribed medicinal cannabis) and a comprehensive Disciplinary Policy that defines the potential consequences of a failed drug test, or breach of the Company Drug and Alcohol Policy.
A failure to have suitable employment documentation in place may render any testing invalid or any disciplinary process unjustified.
How can Russell Drake Consulting assist in managing medicinal cannabis situations?
In recent years we have encountered many medicinal cannabis situations, some leading to formal disciplinary action, and some resulting in the termination of employment. In some situations, where the employee indicates that this is the only available medication to treat their condition, when faced with potential termination they quickly find alternative treatments. With prescriptions for medicinal cannabis on the rise (1,400% between 2020 and 2024 according to the NZ Medical Journal) this is a situation that more employers will face in the future.
Please feel free to contact us if you have any questions and need assistance in addressing a medicinal cannabis issue, including the development of suitable Drug and Alcohol Policies and Disciplinary procedures.