Medical cannabis is gaining prominence as a treatment for both physical and mental health conditions. However, there is complexity around its impact on the safety obligations of employers and workers. This page is intended to educate workers and Health and Safety Representatives (HSRs) about their rights surrounding the use of medical cannabis in the workplace.
Medical Cannabis Basics
Medical practitioners have been legally prescribing cannabis since 2016. The active ingredients in medicinal cannabis are called 'cannabinoids.' The two main cannabinoids are THC, which is responsible for the psychoactive effects of cannabis, and CBD, which is responsible for the non-psychoactive effects of cannabis. Some medical products contain exclusively CBD, whereas others contain both CBD and THC. It's important to note that there is no evidence that CBD alone can give rise to a positive drug test. In drug tests, THC is the cannabinoid tested for. However, be aware that some products marketed as CBD may also contain small amounts of THC, which may lead to a positive THC result in a drug test.
Driving and Medical Cannabis
In Victoria, driving with any THC in your system is illegal, even with a prescription. Patients taking CBD-only medicines can lawfully drive, as long as they are not impaired.
A new bill introduced in the Victorian parliament will allow medicinal cannabis users to participate in a closed-circuit trial to assess the impact of cannabis on their driving abilities. While Victoria legalized medicinal cannabis in 2016, it remains illegal to drive with any trace of THC, the psychoactive component of cannabis, in one's system. The trial, overseen by the state government, will be conducted in a controlled environment separated from public roads, addressing concerns of patients risking license loss or fines. Researchers aim to better understand the effects of medicinal cannabis on driving behavior and potential road safety risks.
Occupational Health and Safety (OHS)
Employers have a duty under Section 21 of the OHS Act 2004 to ensure a safe working environment. This duty includes monitoring employee health, workplace conditions, and safety beyond employees. If a medical cannabis prescription may impair a worker, and this impairment poses a risk to the health and safety of workers, the worker will be unlikely to perform their current role while taking their medication without reasonable adjustments. The approaches to measuring 'impairment' and making 'reasonable adjustments' may vary from workplace to workplace depending on workplace drug and alcohol policies and the circumstances of the particular workplace.
Disclosure to Employers
Generally, there's no obligation to disclose medical cannabis use to your employer. An exception to this is if it affects your ability to perform your job safely, as you have a duty under the OHS Act 2004 to take reasonable care for the health and safety of others who may be affected by your acts or omissions. Your workplace may also have a policy requiring disclosure.
Role of Health and Safety Representatives (HSR)
HSRs play a vital role in shaping workplace drug and alcohol policies, which are the best way to protect and accommodate workers prescribed medical cannabis. They must be consulted in the creation of drug and alcohol policies under Section 35 of the OHS Act 2004. Employers must consider the views of HSRs during consultation. A drug and alcohol policy that is considerate of the needs of those with a medical cannabis prescription could involve making adjustments to work requirements where reasonably practicable. This may include considering alternative duties if available. If such adjustments are not possible and the situation is temporary, the employee should be sent home on sick leave, with suitable transport arranged. If the situation is not temporary, further consultation and consideration of appropriate alternative duties may be required.
Employers must make reasonable accommodations for workers with disabilities. If you are prescribed medical cannabis for an illness or disability, they may be required to make adjustments to accommodate the injury or illness, including the effects of prescribed medication. Adjustments can include modifying rosters, job tasks, or shift structures to allow a worker to perform their job while not impaired by their medication or to perform different tasks where the impairment does not pose a health and safety risk. However, adjustments that compromise safety or fundamentally alter a job role aren't required. For example, if you’re a truck driver and are unable to legally drive as a result of your use of medicinal cannabis, an employer may be able to successfully argue that it is not reasonable for it to make the adjustments required to enable you to safely continue in your role.
Discrimination and Medical Cannabis
Discrimination is allowed under the Equal Opportunity Act 2010 if it's to protect health and safety, even if it affects a person with a medical cannabis prescription. However, if the use of prescribed medical cannabis does not pose a health and safety risk to the user, workers or the public, it is possible that a Court or Tribunal may find that a zero-tolerance policy discriminatory.
Links to further resources
VTHC & Slater and Gordon's Medical Cannabis Liveshow
Updated October 2023