Medical Cannabis and Your Workplace
With the increased use of Medicinal Cannabis/Marijuana here in New Zealand, I have had a surge of clients call and seek advice about what this looks like in an employment scenario. The answer is very simple and people often get confused because having cannabis in your system whilst at work has historically led to disciplinary action against the employee.
Here’s how an Employer should look at Medical Cannabis.
Simply take out the word cannabis or marijuana and replace it with any other prescribed medication and you should answer your own question. Still confused? Fair enough. Most businesses will have a Drug and Alcohol Policy for their workplace. In this Policy, it should detail prescribed medication. In this section, you would expect the Policy to say that Employees are required to declare any prescribed medication that would potentially have an impact on the Employee’s work.
For example, if the Employee was on a heavy dosage of Tramadol for pain management, they may be ok to work in a non safety sensitive role like in an office, but you wouldn’t allow them to operate heavy machinery. Same principle here. If an employee uses medical cannabis which has legitimately been prescribed to them, then they must follow the Drug and Alcohol Policy and declare the prescription to their employer up front and discuss what this may mean for their work. If your Employer has concerns about your work and the used of the prescribed marijuana, then like any other medication, they may wish to have you obtain a medical certificate detailing that the Employee is safe to work if they consume the marijuana as directed and prescribed. This then shifts the burden of responsibility to the Doctor who issued the medical certificate. If the Employee can’t obtain a medical certificate because the dosage they use would/could impact their ability to perform their duties safely, then the Employer and Employee should have a conversation about the timeframes the Employee is required to take the prescription and whether there are alternative duties available that would be safe, etc. If there are no alternative duties, then depending on the length of the prescription, it may be reasonable for the Employer to place you on leave, or if the use will likely to be prolonged, then potentially look to terminate the Employment under medical incapacity.
Here are some frequently asked questions:
Question: Why do I have to advise my Employer when I’m not impaired, this is private medical information?
A: Privacy is important, but it is also situational dependent. Under the Employment Relations Act, both Employees and Employers must act in good faith and this may mean that in certain circumstances, you will be required to pass on private information. In such cases where you are taking medication, under the Health and Safety at Work Act, the Employer is entitled to know whether an Employee is taking medication that may have an impact on their work.
You will note that I have highlighted 'may'. It is generally accepted that impairment is subjective and everyone will react to medication differently. That is why there needs to be a line in the sand somewhere that says, impaired or not, you cannot be past this limit. That is why it is very important to be open and honest about your situation so that you and your employer can work through the situation cooperatively. If you can obtain a medical certificate stating that you’re ok to work, then that’s good and your Employer will have to take that into consideration.
Q: What happens if my Employer sacks me because I’m on Medical Cannabis?
A: An Employer must act reasonably and they will have to justify their decision to terminate. If you are legitimately taking prescribed medication which you have been signed off by a Doctor to use and also work, then it would be difficult for your Employer to justify their decision to terminate. If you can’t get a medical certificate, then there needs to be a constructive conversation between the parties to try and work it out. It may be that if you’re likely to be a long-term user of medical cannabis where you can’t obtain a medical certificate, then it may be reasonable for an Employer to terminate your employment under medical incapacity. If you get to this stage, talk with your Doctor about alternative medication that wouldn’t impact your work.
Q: What happens if I don’t declare that I’m on Medical Cannabis?
A: You may be in breach of your obligations under the Employment Relations Act and or your workplaces Drug and Alcohol Policy. If you are found to be in breach, you may be liable to disciplinary action.
Q: What happens if I get drug tested?
A: You will be treated like anyone else who is taking medication. Assuming that you have advised your Employer and obtained a medical certificate stating that you are safe to work. If you produce a “non negative” result, the sample will likely be sent to the Lab for confirmation testing and the Lab will report back on whether the levels in your system are consistent with the prescription. If they are, there shouldn’t be a problem. If they are not, then you could face disciplinary action. If you hadn’t advised the Employer of your prescription prior to the drug testing, then you may be liable to disciplinary action providing the policy requires you to declare the medication.
In conclusion, Medicinal Cannabis is nothing to fear and should be treated like any other medication. As long as there is transparency and honesty, both the Employer and Employee should be able to get through any issues in a productive way.
If you have any questions or queries contact John Dustow, Employment Law Specialist.
JOHN DUSTOW – E: johnd@tech5.co.nz | P: 027 855 9989







