Pic: A ‘Navigating medicinal cannabis in the workplace’ workshop held in Christchurch.
Glenn Dobson, CEO of TDDA, says the Medicinal Cannabis Act of 2020 is a pivotal turning point for a lot of industries, including this one, and signals the arrival of medicinal cannabis and the substance’s use in medical applications.
With growers and distributors gradually meeting governmental standards for product quality and development, proliferation and easier access to high potency cannabis has arrived.
The Drug Detection Agency (TDDA) is reporting a significant rise in cannabis detection during workplace drug screenings. Increased accessibility to medicinal cannabis has raised concerns, and a few eyebrows, in both safety-sensitive and white-collar working sectors.
Now is the time for civil contractors to get policies, staff education and testing programmes in place.
We’re not just seeing cannabis trigger our testing devices. We’re witnessing employees in safety-sensitive roles presenting prescriptions for medicinal cannabis. Legality does not equate to suitability – it remains dangerous for an individual with the presence of cannabis within their system to operate in a safety sensitive workplace.
The rising tide
After the enactment of the Medicinal Cannabis Act, TDDA anticipated a latency period, as cannabis operations and individuals seeking prescriptions acclimatised to legalisation and the regulatory environment.
However, this period is seemingly at its end, with the company flagging the urgency for businesses to reassess and modify their current drug and alcohol policies.
While confronting substance issues is inevitable for contractors, the availability of high-potency cannabis products exacerbates these concerns and the risk to employees and the business. It’s crucial for owners, managers, CEOs and boards to promptly realign their policies and get testing programmes in place.
To manage the risk of medicinal cannabis, TDDA stresses the importance of seeking expert counsel. This includes specialists in drug and alcohol policies, employment law, and a qualified medical review officer (MRO).
Crafting a solid operational plan requires understanding the multifaceted nature of doctor prescribed medicinal cannabis, ensuring both employee safety and legal compliance.
The employer’s duties and dilemmas
Medicinal cannabis can contain THC, CBD, or both. TDDA is also seeing anecdotal evidence that products advertised as ‘pure CBD’ containing enough THC to affect users and trigger accredited drug screening devices. There are also a number of CBD product advertisements claiming to be pure CBD, but that were accompanied by disclaimers citing the product may contain varying levels of THC.
The issue lies in that THC, tetrahydrocannabinol, is the psychoactive substance that gets people high and affects coordination, memory and motor skills. A high purity CBD product is not likely to trigger a testing device that’s created to detect a THC metabolite.
These are different substances, but TDDA has seen THC positive tests where the donor has claimed they’re only using CBD based products and produced a prescription.
This presents a set of challenges, especially for employers in sectors like contracting where safety is paramount.
Being compliant with the Employment Relations Act 2000, Health and Safety at Work Act 2015, and the Privacy Act 2020 – is non-negotiable. The intersection of employment details, health and safety, risk and compliance, and medical testing data opens a company to a range of legal quagmires such as personal grievances, Worksafe investigations and breaches of privacy regulations.
Emma Crowley, a senior associate specialising in employment law at Langton Hudson Butcher Lawyers, says; “The legal landscape surrounding medicinal cannabis in the workplace is still developing. There’s a lack of case law. The one relevant case confirms the Employment Relations Authority’s acceptance that there is no evidence to show an employee who consumes medicinal cannabis is not impaired – which is helpful for employers.
“Other issues, such as someone producing an unfilled prescription but testing positive for THC, are yet to be tried. For example, could a fair and reasonable employer find the use of black-market cannabis is unlawful where a prescription hasn’t been filled due to the cost of lawfully available products? Could this constitute discrimination?”
Crowley adds; “Employers should tread carefully and seek advice before making any employment decisions where cannabis use is for medicinal purposes.”
Enter the medical review officer (MRO)
In addition to lawyers, TDDA is also recommending consultation with a qualified MRO. These doctors are specially trained to review laboratory analysis, medical and prescription information, and drug levels to ensure that medications are being used appropriately.
Dr Mary Obele, an accredited medical review officer says; “Determining work-readiness for someone prescribed medicinal cannabis is a nuanced process. CBD and THC’s effects vary, and it’s critical to assess how an individual’s role might be impacted. It’s also important to assess their role against the side effects of the medication, be it an opioid, benzodiazepine or medicinal cannabis.
“All can be used for pain relief or abused for recreational purposes. A test only shows presence, an MRO digs much deeper and can help a business defend a legal challenge.”
The onus remains on employers to guarantee a safe environment. An effective substance policy along with education and testing programmes can encourage employees to disclose relevant prescription drugs and ensure they’re being used appropriately.
Laws untested, compliance needed
The increasing prevalence of medicinal cannabis in our workplaces requires immediate attention. TDDA strongly advocates for companies to revisit and amend their substance policies, ensuring they remain relevant and effective while case law catches up to the situation.
To increase compliance and reduce business risks TDDA also recommends taking advice from accredited testers, lawyers and MROs. It may seem a tall order but to remain compliant it might be the only way.
Ensuring managers and employees are well-educated on the issue, in addition to robust training for supervisors to identify risks, is paramount.
As Dobson rightly warns; “Medicinal cannabis, especially when high potency, introduces risks. If an employee is on the road representing your company, be prepared. Don’t be caught off guard.”
The TDDA was set up in 2005 to provide workplace substance testing, education, and policy services. It now has 300 staff, 90 mobile health clinics, 65 locations throughout Australasia, and processes over 250,000 tests each year with ISO17025 accreditation for workplace substance testing.