Nick Noonan, Henry William Lawyers
Nick Noonan, Henry William Lawyers

As medical, legal and social attitudes towards cannabis evolve, employers might need to rethink their workplace policies and responses to positive test results, an employment lawyer says.

The medical profession is increasingly recognising the benefits of using cannabis in treating symptoms of serious illness and injury, with a number of countries either decriminalising it entirely or allowing access to medicinal varieties, Henry William Lawyers principal and director Nick Noonan tells a recent HR Daily Premium webcast.

In Australia, the Federal Government legalised the medicinal use of cannabis for patients with chronic and painful conditions in 2016, and early this year made further changes to allow approved companies to import, store and sell the drug until domestic cultivation meets local needs, he says.

The Victorian, NSW and Queensland governments have passed laws to allow certain patients to access and use medicinal cannabis from approved practitioners, and it's probable that other states will do the same.

As the laws evolve, the stigma around cannabis use is also likely to change, Noonan says, and "organisations will need to consider certain implications".

The "obvious" one is reviewing any drug and alcohol policies and testing regimes that assume any form of cannabis use is illegal, he says.

Most patients prescribed the drug under current laws will be so ill they're not working, "but there are likely to be exceptions, and I also expect that the categories of patients to whom medicinal cannabis can be prescribed is likely to widen".

"As with other types of prescribed medication, workers should have an obligation to their employer to disclose the use of medicinal cannabis," Noonan notes, particularly as there could be safety issues with people attending work under its influence.

"I understand the current state of play with the science is that most medicinal cannabis removes the THC, which is the component of the cannabis which is known to cause the psychological effects, however it is probably too early to tell what sort of other side effects there might be for employees attending work.

"It goes without saying that even though medicinal cannabis may be lawful, employers will still have the ability to regulate the use of that in their own workplace, particularly if the drug is impairing the worker's abilities to perform their roles and duties."

Recreational cannabis use remains illegal in Australia, "but I expect there will be increasing examples in the future of employees testing positive to cannabis, and it may be necessary to examine not only whether the employee was lawfully entitled to access and use cannabis, but also the extent to which the employee's presence at work was permissible under the influence of cannabis", Noonan says.

"It's an interesting live example and it's going to be interesting to see how the law and social standards develop in response to it."

The webcast covers more on the legal framework around managing drugs and alcohol at work, testing regimes, what to consider when drafting policies, case law examples, and more – upgrade here for access if you're not already an HR Daily Premium member.