Cannabis on prescription: Do you need to change your workplace policies?

As of 1 November 2018 doctors have been able to prescribe cannabis products to patients in limited circumstances.

A majority of employers will have some form of drugs and alcohol policy in place. Many organisations go further, applying randomised drug and alcohol testing for employees, especially in industries where there are particular safety concerns. You may need to review these policies and how you apply them in the light of the recent changes to the rules on cannabis use.

Legal changes

As of 1 November 2018, doctors have been able to prescribe cannabis products to patients in limited circumstances.

The NHS Guidance for doctors in England currently provides that cannabis-based products should only be prescribed when other treatment options have been exhausted. Such products can be prescribed in cases of adults with vomiting or nausea caused by chemotherapy or adults with muscle stiffness caused by multiple sclerosis. As it stands, the circumstances in which a specialist doctor may prescribe medical cannabis products is limited, but it is still worth reviewing your drug and alcohol policies in the light of this change. 

Amending your policy

If your organisation’s drug policy does not already provide for notification of prescribed drugs that may impact on an employee’s ability to do his or her job, this is something that it would be prudent to include. Some organisations also require employees to notify the Company about over the counter drugs where these may impact on the employee’s ability to do the job safely. Whether prescribed or sold over the counter, medication may have side effects that impact on the employee’s ability to concentrate or follow safety-critical workplace procedures.

It is advisable to add a clause into your drug and alcohol policy stating that employee must inform the appropriate person, be that the company doctor or nurse or HR, that they are taking medication, prescribed or over the counter, that may have an impact on their ability to work safely. When introducing such wording you could consider including examples of prescribed and over the counter medication, including “prescribed medicinal cannabis products”. Explicitly referring to cannabis products in your policy may help to reduce any fear of stigma that employees who have been prescribed such products may have in relation to notifying their employer about what they are taking and how it may affect them.

Drug testing and investigating results

The other point to consider is your organisation’s application of any randomised drug and alcohol tests. A test result could come back indicating that the employee has been using cannabis products. While a positive result may usually result in disciplinary action being taken, it is now especially important to make sure a thorough investigation takes place first. This will give the employee the opportunity to explain if the positive reading for cannabis use has come about due to prescribed medicinal cannabis products. This in itself may require further investigation. For example, a copy of the prescription or confirmation from the employee’s GP that the individual has in fact been prescribed this medication.

Dismissal for a positive reading in such circumstances could lead to claims for unfair dismissal and/or discrimination arising from disability. If the employee’s performance is impaired by cannabis-based medication, or they cannot safely carry out all of their duties, it may be necessary to obtain expert medical input on the effects of their prescribed drugs and to make reasonable adjustments to accommodate these.

Numerous products containing cannabis oil (or ‘CBD oil’), such as massage oils and moisturising creams, are available to buy on the high street without a prescription. These products can vary considerably in respect of quality, efficacy and the amount of CBD oil they actually contain. The current consensus seems to be that these commercially available products are highly unlikely to have any detrimental effect on an employee’s performance and, in any event, are unlikely to turn up a positive result on a workplace drug test. However, if an employee insists that these commercial products lie behind a positive test result, further investigation or expert medical input may be required.

Victoria Duddles (victoria.duddles@weightmans.com) is an Associate in the Employment, Pensions and Immigration team and is based in Birmingham. If you have any questions, require support with a disciplinary case involving drug misuse or would like us to review your workplace policies on drugs and alcohol, please do not hesitate to contact Victoria or speak to your usual Weightmans advisor.

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