Medicinal cannabis in the workforce

Written by Brian O'Shea, Special Counsel, Legal and Workforce

There is a growing awareness within local government of employees resorting to the use of alternative medicine to treat illnesses.

Since 2016, it has been possible for patients in Australia to access doctors holding appropriate authority to prescribe medicinal cannabis. Broadly speaking, medicinal cannabis is cannabis prescribed to relieve the symptoms of a medical condition, such as epilepsy.

The Alcohol and Drug Foundation (ADF) states that research has found a cannabis plant produces around 130 cannabinoids and about 300 non-cannabinoid chemicals. The two main cannabinoids that have therapeutic benefits are delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD). There have been claims that other cannabinoids have therapeutic properties, but these have not yet been proven.

The ADF also states that the main difference between the two cannabinoids is that THC has strong psychoactive effects, meaning it makes a person ‘high’, whereas CBD is thought to have an anti-psychoactive effect that controls or moderates the ‘high’ caused by the THC. CBD is also thought to reduce some of the other negative effects that people can experience from THC, such as anxiety.1

It is illegal to drive a motor vehicle in Queensland, with THC in your system.

The authority to prescribe medicinal cannabis is administered by:

• The Therapeutic Goods Administration (TGA) under the Therapeutic Goods Act 1989 (Cth) (TG Act) and the Therapeutic Goods Regulation 1990 (Cth) (TG Regulation); and
• at a state and territory level by the medicines and poisons legislation of the relevant jurisdiction which regulates access to medicinal cannabis by reference to the Standard for the Uniform Scheduling of Medicines and Poisons (Poisons Standard).

Approvals are given by the TGA either through the:

• Special Access Scheme-B (SAS); or
• Authorised Prescriber Scheme (APS).

The SAS is where authority is given to prescribe medicinal cannabis to a specific person under a treatment plan.

The APS is where authority is given to a doctor to prescribe medicinal cannabis to a class of persons or a class of illnesses. Different rules apply to such authorities.

Scientific evidence base suggests that medicinal cannabis may be suitable to treat:

• Severe muscular spasms and other symptoms of multiple sclerosis;
• chemotherapy-induced nausea and vomiting;
• some types of epilepsy with severe seizures;
• palliative care (cachexia, nausea and vomiting, pain); and
• some types of chronic non-cancer pain.

Research continues to be conducted on the potential uses of medicinal cannabis.

For councils, knowing how to detect THC and how to manage employees found to have THC in their system after using medicinal cannabis is critical to ensure they comply with their Health & Safety obligations.   The questions for councils to consider include:

1. How do we test for the drug?
2. What process do we follow if THC is found to be in an employee’s system?
3. How did the employee end up with THC in their system?
4. If they are being prescribed medicinal cannabis, why?
5. What is the medical condition the employee suffers?
6. Who prescribed the drug?
7. What authority did the doctor rely on to prescribe the drug?
8. Are there any conditions attached to that authority?
9. What is the treatment plan for the employee?
10. How long will the employee be using medicinal cannabis for?
11. Is there a more suitable alternative treatment plan available?

 Testing for the presence of drugs in the body system can be done through:

• Saliva;
• Blood; and/or
• Urine.

Urine may remain positive to THC for up to 30 days. Some people erroneously believe THC will not be detected with saliva after a day of using medicinal cannabis. This is not the case.

Employers should be aware there is a difference between “non-negative” and “inconclusive” results. 

A “non-negative” result means there is drug detected in the sample. An “inconclusive” means that it cannot be confirmed that drug is detected in the sample.

Councils therefore need to take care when drafting their policies and procedures to be aware of this distinction so that, for example, where a result is inconclusive, their procedures allow them to get more bodily samples for testing.

Councils should also take care to remove any reference to “impairment” from their policy or procedure as this invites arguments an employee is not impaired by a drug. If council adopts a zero tolerance to the use of drugs, even if they are prescribed by a doctor, then impairment should not be an issue.

It is critical to the success of the implementation of any program, that the testing regime and outcomes are clearly understood and defined in the policy or procedure.

There are presently two cases where the court will be asked to look at the use of medicinal cannabis by employees and their employers’ management of same. Those cases are due to be heard in the Federal Circuit Court Queensland and the Australian Human Rights Commission for conciliation and thereafter, in the Federal Court of Australia on any appeal.2

In both those cases, employees had their employment terminated after testing positive to THC from using medicinal cannabis. The outcome of those cases will inform employers how to manage such employees and the process.

In the meantime, councils are best advised to ensure all their processes and procedures stand up to scrutiny.

If you need legal guidance about medicinal cannabis in your workplace, your assistance developing policies relating to the use of alternative medicine by employees, please contact our legal team via email legal@wearepeak.com.au or phone 07 3000 2148