Posted on September 14, 2023
For over three years, cannabis-based medicines have been lawfully prescribed by New Zealand doctors as a treatment for a range of medical conditions, including common mental health conditions such as anxiety, depression and PTSD, as well as chronic pain disorders.
Recent case law has clarified the duties employers have to employees suffering from these types of conditions. Clearly these conditions can impact an employee’s ability to work safely.
So, how does an employer with a zero-tolerance drug and alcohol policy navigate the situation where an employee effectively manages their health by taking prescribed medicinal cannabis?
Zero-tolerance and impairment
Many employers with safety sensitive workplaces will have a zero-tolerance drug and alcohol policy, that says that any non-negative drug test will result in suspension and possible dismissal.
Tetrahydrocannabinol (THC), the main psychoactive compound in cannabis, is present in medicinal cannabis and is picked up in workplace drug testing, producing a non-negative result. The employee taking medicinal cannabis will therefore breach a zero-tolerance policy.
But are they at risk of impairment, making them a health and safety risk at work? And what about the argument that they would be more impaired if they weren’t taking medicinal cannabis?
For example, a career truck driver who can’t sleep due to PTSD and has tried every other conventional treatment with no benefit, is finally able to get regular sleep and come to work well rested when taking medicinal cannabis. The driver says they do not feel dizzy or drowsy or have any concentration deficit from taking the prescription cannabis and the amount of THC in their bloodstream is small, being only just above tolerable levels.
Will it be fair to suspend or fire this employee?
This is a developing area of science and law, so there is little guidance currently available.
Recently the Employment Relations Authority considered the case of a dismissed port worker. The employee argued he was not impaired by the medicinal cannabis he had taken just once in a small amount, based on his self-assessment and his relatively low THC reading (which was above the company threshold), in the evidential drug test. An expert witness called by the employer gave evidence that there is no safe and recognised test for impairment and self-assessment is subjective and unreliable, meaning the only measurable result that can exclude impairment is a negative result.
The Authority said that just because the cannabis taken was legitimately prescribed, did not mean the employee could consume it and assume non-impairment. The risk of impairment remained, and the consumption was upheld as a breach, although it was found the employer should consider this factor when deciding consequences of the breach. Ultimately it was found the employer’s decision to dismiss was substantively justified.
It’s (still) all about the policy
Policies are meant to be living documents, reviewed and updated to ensure they reflect developing behavioural boundaries for all employees in an organisation.
It is, therefore, advisable for all employers, but especially those that operate safety sensitive workplaces, to review their Drug and Alcohol Policies to deal specifically with their approach to medicinal cannabis. When doing this, consider:
- Do you need zero-tolerance to medicinal cannabis? If not, what rules and boundaries are appropriate from a health and safety perspective?
- How can you test for THC and when?
- Will any breach of the policy by use of medicinal cannabis result in suspension/dismissal or are there alternative options at the employer’s discretion, built into the policy?
- If there are alternative options, when will they be considered and what will they be?
Before implementing any updates to D&A policies, employees should be consulted.
