Employer Guide to Medicinal Cannabis

In this Newsletter I provide a guide provided by the New Zealand Drug Foundation (attached) to assist you in navigating the issue of medicinal cannabis in the workplace.

Understanding Medicinal Cannabis

  • Legal Status: Medicinal cannabis is a prescription-only pharmaceutical product accessed through the Medicinal Cannabis Scheme (since April 2020). It must meet minimum quality standards (Good Manufacturing Practice).
  • CBD vs. THC:
    – CBD (Cannabidiol): Non-intoxicating, does not cause impairment, and is undetectable in standard drug tests.
    – THC (Tetrahydrocannabinol): The intoxicating component that can cause impairment. It is detectable in drug tests.
  • Testing Limitations: Drug tests detect the presence of substances (metabolites) but cannot definitively measure or prove current impairment. THC can remain detectable for days or weeks after its intoxicating effects have worn off.

Employer Obligations & Rights

  • Health and Safety: Employers have a duty under the Health and Safety at Work Act 2015 to eliminate or minimise risks. This includes managing risks from impairment, especially in safety-sensitive roles.
  • Non-Discrimination: Sanctioning an employee solely for a positive cannabis test when they have a valid prescription may constitute unlawful discrimination on disability grounds under the Human Rights Act 1993 and the Employment Relations Act 2000.
  • Privacy: Medical information is confidential under the Privacy Act 2020. However, employees may be required to disclose medication use if it could affect their ability to safely perform their duties
  • Dismissal: Dismissal for using medicinal cannabis is generally not considered serious misconduct unless it involves a breach of safety obligations that cannot be mitigated. Alternatives like medical incapacity or medical retirement may be considered if an employee cannot safely perform their role for the foreseeable future.

Best Practice for Workplace Policies

The guide recommends that employers review and update their policies to explicitly address medicinal cannabis. Effective policies should:

  • Define Impairment: Focus on identifying and responding to actual impairment from any cause (fatigue, stress, or medication) rather than just substance presence.
  • Clarify Disclosure: Provide a confidential process for employees to report the use of medications that might cause impairment without fear of repercussion.
  • Outline Testing Procedures: Specify who will be tested (prioritising safety-sensitive roles), under what circumstances, and what actions will follow a result.
  • Support Accommodations: Include steps for temporary or permanent redeployment to less safety-sensitive roles if impairment poses a risk.

Key Takeaways for Employers

  1. Safety First: Focus on managing the risk of impairment rather than just the presence of a substance.
  2. Individual Assessment: Evaluate each case based on the specific role, the nature of the medication, and medical advice.
  3. Good Faith: Always act as a “fair and reasonable employer,” following established processes and investigating thoroughly before taking disciplinary action.