Managing Medical Cannabis In The Workplace

Since 2018, doctors registered with the General Medical Council on the Specialist Register have been permitted to prescribe cannabis based medical products. This has caused a number of issues related to Employment Law.

A notable example brought this to light: Mr Jack Truman vs SPL Powerlines.

When assessing the use of medicinal cannabis in the workplace, employers must navigate several overlapping pieces of legislation.

These are:

1. Health and Safety at Work Act 1974
2. Equality Act 2010
3. Road Traffic Act 1988

When considering what approach employers should take, medicinal cannabis should be treated no differently than any other medicine in the workplace that may cause impairment.

THC v CBD and the legal issues with unlicensed products

THC is the main psychoactive ingredient in the cannabis plant. This is what gives people the “high” whereas CBD is used to slow down signals to the brain and is not a psychoactive ingredient.

Many users who suffer from anxiety or other mental health disorders will often be referred to use CBD rather than THC. Although CBD products are not cannabis, some products do contain THC if they are unlicensed.

These unlicensed products can still be legally prescribed by doctors on the Specialist Register. The legal limit of THC per container is one milligram under the Misuse of Drugs Act 1971.

Possession and drug testing

People who are legally prescribed medical cannabis can lawfully possess and carry their medication under section 5(1) of the Misuse of Drugs Act 1971 due to an exemption under section 7 of the Act.

As most individuals who are prescribed medical cannabis in the UK are accessing unlicensed products through private specialist clinics, and they may potentially contain traces of THC, they can have an intoxicating effect or cause users to fail drug tests.

Cannabis can remain in an employee’s system for up to 28 days, beyond any period of potential impairment. Employees who use medicinal cannabis could therefore test positive if they are subject to a drug test but not be impaired at that point in time.

Employers and their duty of care regarding prescribed medicines

The use of prescribed medicines in the workplace must comply with the Health and Safety at Work Act 1974. This means employers must ensure they are acting with a duty of care, so far as is reasonably practicable, and that employees and anyone affected by the employer’s undertaking are not exposed to any risk to their health, safety or wellbeing.

Given the risk of potential impairment, employers should therefore include the use of medicinal cannabis in their risk assessments. The general guidance from consultants and manufacturers of medicinal cannabis is “do not drive or operate heavy machinery if impaired”.

In accordance with the section 5A(3) of the Road Traffic Act 1988, people who are prescribed medical cannabis can drive and operate heavy machinery as long as they are not impaired, and ensure they follow the directions from the person who prescribed the drug and any accompanying instructions given by the manufacturer or distributor of the drug.

Some clinical guidelines suggest workers should abstain from work for a minimum of eight hours after using THC. However, it is important that employers approach each incident on a case-by-case basis.

Case study: Mr Jack Truman v SPL Powerlines

The leading case on this matter is Mr. Jack Truman v SPL Powerlines.

Mr. Truman was a long serving rail worker who had been prescribed medicinal cannabis to manage the chronic pain arising from genetic haemochromatosis. He had applied for a safety critical role with SPL Powerlines which required him to pass a drug and alcohol test in line with Network Rail’s policy. Under their policy, a ‘fail’ could be recorded as a ‘pass’ if there was a legitimate medical explanation.

Mr. Truman had previously disclosed that he used medicinal cannabis and, as a result, his test result was positive. Despite Network Rail’s policy, his result was recorded as a fail rather than a pass. As a result, SPL Powerlines withdrew his job offer and imposed a five-year ban on him undertaking any safety critical work.

Mr. Truman brought claims for disability discrimination. The Employment Tribunal found that:

• If the policy had been applied properly, his result should have been recorded as a pass, not a fail.
• The medical reviewers did not properly investigate his prescription before failing the claimant.
• The claimant was not contacted for further medical assessment before the ban was imposed.

The judgment compared prescribed cannabis with prescribed opiate medication, noting that rail workers taking opiates can (sometimes) continue working after an assessment.

What the finding in Mr Jack Truman v SPL Powerlines means in practice

Employers cannot automatically treat prescribed medicinal cannabis the same as illegal recreational cannabis. Employers should ensure a proper medical assessment and individual risk analysis is carried out.

Employers should also be especially cautious of implementing blanket bans, as this may give rise to disability discrimination risks.

Overall, the judgment emphasised that impairment matters more than the presence of THC. Policies must consider disability rights and employers should investigate legitimate medical use before imposing any bans.

How can medicinal cannabis be managed safely and legally in the workplace?

Below are seven key approaches that can help organisations manage cannabis safely and legally:

1. Review policies and processes

Employers should seek to create policies, culture and infrastructure to support individuals to come forward with information regarding their health. Drug and alcohol policies should clearly address prescribed medication and require employees to disclose any medication which could impair their ability to carry out their day-to-day tasks safely.

2. Assess risk:

Employers should conduct comprehensive risk assessments where this is required. This is particularly important for safety critical roles.

3. Assess medical evidence and reasonable adjustments:

Consider obtaining medical evidence and identifying reasonable adjustments, particularly where the employee may have a disability under the Equality Act 2010 (EA 2010).

4. Raise awareness:

Raising awareness at work will ensure there is an organisation wide understanding of what is required of each individual when it comes to work and health and will aid maintaining a proactive approach and support productivity.

5. Exercise care in recruitment:

Employers must be careful not to breach the EA 2010 in relation to any questions asked regarding an applicant’s health during the recruitment process. Further, withdrawing an offer can still give rise to a discrimination claim so decisions at this stage should be handled carefully.

6. Drug test fairly and reasonably

Routine or spot drug testing is generally only permissible in safety critical roles. Where drug testing is carried out and cannabis is detected, employers should investigate if a prescription is in place and take medical advice on the impact of the employee’s fitness to work in their current role.

For further advice and information, explore our Employment Law and Health and Safety services. These retainer based services give you access to a team of legal experts who get to know the ins-and-outs of your business and provide bespoke support, advice, and legal expertise.