Navigating THC and Medicinal Cannabis

A recent Fair Work Commission case sheds light on the complexities surrounding the use of medicinal cannabis, particularly when it contains tetrahydrocannabinol (THC), in safety-critical roles. This case underscores the importance of clear communication and adherence to drug and alcohol policies for both employers and employees.

Case Overview
In this case, an employee in a safety-critical role informed his employer that he had been prescribed medicinal cannabis containing cannabidiol (CBD) to manage chronic pain from a workplace accident. The employer supported the use of this medication outside of work hours. However, the employee did not notify the employer when his prescription was updated to include THC.

Mr. Mills, the employee, later tested positive for THC. Medical reports indicated that, despite not reporting any side effects, he was at an increased risk of impairment and adverse events while using medicinal cannabis. Consequently, he was deemed unfit for safety-critical work.

Dr. McCartney stated: “Despite not reporting any side effects, Mr. Mills is still at an increased risk of impairment and adverse events when taking medicinal cannabis and therefore, from the information provided and on the balance of probabilities, he is not fit to perform safety-critical work while using medicinal cannabis for his chronic pain condition. From the information provided, Mr. Mills in his role as a works officer is required to undertake safety-critical tasks (e.g., operating and driving heavy vehicles) and therefore would not be able to safely perform all the inherent requirements of his role while using medicinal cannabis.”

Employer’s Response
The employer allowed Mr. Mills to consult with a medical practitioner about alternative treatments, but no suitable options were found. Although Mr. Mills expressed willingness to stop taking THC, the employer decided to terminate his employment, concluding that he could not safely perform the inherent requirements of his role.

Commission’s Findings
The Commission found that Mr. Mills’ failure to notify the employer about the THC medication was a breach of the company’s drug and alcohol policy and a valid reason for dismissal. However, the Commission also determined that the employer did not properly consider its own policy, which aimed to provide a fair and flexible approach to drug and alcohol matters.

The employer did not allow Mr. Mills to explore alternative treatments or the option of resuming his duties without using medicinal cannabis, despite his request. As a result, Mr. Mills was reinstated, awarded 27 weeks’ wages, and had his annual leave and long service leave accruals reinstated.

Key Takeaways

• Clear Communication: Employees must notify their employers of any changes in their medication, especially when it involves substances that could impair their ability to perform safety-critical tasks.
• Adherence to Policies: Employers should ensure that drug and alcohol policies are followed and that all avenues to resolve issues are considered before making dismissal decisions.
• Fair and Flexible Approach: Employers should consider the individual, operational, and environmental circumstances when dealing with drug and alcohol matters, as outlined in their policies.

This case highlights the need for both employers and employees to navigate the uncharted waters of medicinal cannabis with caution and clear communication. By doing so, they can ensure a safe and compliant workplace for all.

For more details, you can refer to the full case document here.