What is the legal position on medical cannabis? 

Since 2018, doctors registered with the GMC on the Specialist Register can legally prescribe cannabis-based medical products (‘medical cannabis’).  Research shows that the number of private prescriptions has steadily increased, with the BBC reporting last year that there are about 50,000 users of medical cannabis who receive prescriptions from 33 private pharmacies. 

There are very few NHS prescriptions as they are strictly limited to narrow circumstances such as chemotherapy or multiple sclerosis side effects.  However, on a private basis, there are a broad number of conditions that would qualify someone for a prescription, such as anxiety, chronic pain, back problems and migraines. This is where the growth of prescriptions is being driven.

Despite the relaxation of criminal sanctions for possession/use of cannabis around the world, in the United Kingdon, it remains illegal to use or possess cannabis without a valid prescription. Cannabis is classified as a Class B drug. It is not a defence that the drug was being used for medical purposes on a self-medicating basis. It is only a defence if the individual has a valid prescription.

How can employees obtain a private prescription?

Many online private clinics advertise their ability to prescribe cannabis for a multitude of conditions – significantly wider than those the NHS will prescribe it for. Some advertising focuses on offering to confirm eligibility within 30 seconds. The patient must confirm that they have already tried at least two other forms of treatment to relieve their symptoms (which can include over-the-counter medication) and provide additional medical evidence (e.g. GP records). 

Although obtaining a private prescription may appear relatively easy at first glance, employers should not assume that an employee has acquired a prescription without a genuine reason or that a prescription is not legitimate. Indeed, to make an assumption that the employee has simply found a loophole to allow them to take cannabis for recreational (or even medical) purposes may, of itself, pose a legal risk to the employer.

The NHS reports that there is some evidence that medical cannabis can help certain types of pain, and many users report anecdotally that it has a life-changing impact for them, allowing them to continue working despite their underlying health conditions.  

Prescriptions can come in different forms, including cannabis oil (which is taken orally) or as a flower (which is vaporised). Reports suggest that cannabis oil can take longer to have an effect, whereas the flower provides an instant effect. 

A device for vaporising medical cannabis is considered to be medical equipment and therefore not covered by legislation for smoking or vaping e-cigarettes. 

Are there any tribunal cases on managing medical cannabis?

The vast majority of tribunal decisions concern employees self-medicating without a valid prescription. However, there have been a few recent tribunal decisions concerning prescribed medical cannabis although it is important to note that these are only at ET level and unsurprisingly, are all heavily fact specific. 
   
In Kimber v Cardiff and Vale University Local Health Board , an employee prescribed medical cannabis brought a discrimination arising from disability claim. The Tribunal found that whilst it was not unreasonable for the employer to ask an employee for their medical cannabis prescription, it was unreasonable (and therefore unfavourable treatment) to ask for a treatment plan. This was on the basis that it could have contained broader personal and medical information or therapy goals. The Tribunal also held that the employer’s extensive and repeated enquiries about the employee’s use of medical cannabis (even after sufficient information had been provided) were unnecessary and amounted to unfavourable treatment.  

In a separate case, whilst the ET did not uphold any of the Claimant’s pleaded claims, it did express sympathy for the Claimant stating that the “the claimant should be able to work in a safety critical role…just as person taking opiate based medication would be allowed to do, subject to a risk assessment and monitoring.”

Key issues for employers

Use of medical cannabis is raising new challenges for employers. Here are some of the issues to consider:

• Drugs screening and fitness to work assessments. Routine or spot testing of employees for drugs is generally only permissible in safety critical roles. Employers should have clear policies requiring employees in such roles to disclose any medication which could impair their fitness to work and should establish a disclosure procedure for medical cannabis in advance of any drug testing.

  Where drug testing is carried out, and the presence of cannabis is detected, employers will need to investigate if a prescription is in place and take medical advice on the impact on the employee’s fitness to work. It is often a common assumption for an employer to believe that any cannabis use is for recreational purposes and that the employee is looking for an excuse for having been ‘caught’. Whilst undoubtedly this does happen employers would be wise to approach such assumptions with caution.

  In some situations, it may be advisable to obtain occupational health or medical advice. This can help employers to determine what impact the cannabis could have on any role and whether any adjustments are required (such as whether more regular breaks are needed).  Medical advice will be particularly important when the use of cannabis at work could be a health and safety risk (for example, when working in manufacturing). If medical advice is required by an employer, it is recommended that any costs associated with obtaining the advice (e.g. time off work, appointment, letters) are paid for by the employer.

  If a medical opinion is that the employee is unable to perform their role while using cannabis, the employer would need to consider whether there are any suitable alternative roles or whether parts of the role could be changed. If not, it may be necessary to engage in a capability process or in some situations, a termination for some other substantial reason as the employee is unable to perform the role. As with all situations, it is important not to respond with a knee-jerk reaction but to take a considered and proportionate view.

• Substance misuse policies.These may need to evolve to keep pace with the increase in medical cannabis prescriptions. Wording about possession of drugs in the workplace may need updating to reflect that employees may legitimately be prescribed cannabis. Employers may also want to consider what they require employees to disclose. Employers would not normally require employees to disclose all prescription medications and arguably medical cannabis should not be any different, but it would be legitimate (and potentially advisable) to include a positive requirement to disclose any prescription medication which can cause impairment. As with any other prescription, it would not be appropriate for an employee with a prescription for medical cannabis to share their prescription with others. Sharing a prescription could be a legitimate breach of policy as well as having potentially criminal consequences.

• Legitimacy of a medical cannabis prescription. Most employers would not question the legitimacy of a prescription for other medication, but medical cannabis may well feel different because of the prevalence (and criminality) of non-medical use, concerns over the impact on fitness to work and, in some instances, concerns about how some private prescriptions are obtained.This is a new and tricky area for employers to navigate. It is likely to be reasonable to check that any prescription for medical cannabis has been issued by a registered specialist. However, challenging the decision to issue that prescription or whether the employee is using the drug responsibly would be much more difficult. In many cases, the employer would already be aware of the employee’s underlying medical condition, decision to use medical cannabis as a treatment and any potential impact (both positive and negative) on the employee’s fitness to work. In cases where the employer has concerns, good occupational health support may be useful but is, of course, not always easy to obtain.

• Stigma, awareness and discrimination. One of the biggest challenges those taking medical cannabis face is the stigma attached to the drug. It is important for line managers and HR to understand that medical cannabis can be used legitimately like any other prescribed medication. Many - if not most - employees will be using medical cannabis to manage a health condition that could meet the legal definition of disability. Employers need to be careful to avoid unjustified discrimination for something arising from a disability or breaching their duty to make reasonable adjustments. For example, refusing to allow a disabled employee breaks to take their prescribed medical cannabis. It could also be a reasonable adjustment to enable a disabled employee to vaporise medical cannabis indoors with proper ventilation.

• Confidentiality. Medical information is treated as special personal data under the GDPR which brings with it additional conditions to satisfy for its processing. This means that employers need to handle information about medical cannabis use carefully and responsibly. Disclosure of information should be kept to a minimum and restricted to only those who need to know for clear business purposes.

• What else? Other role-specific issues can arise - such as the legality of possessing cannabis in other jurisdictions, placing an employee at risk if travelling on business. Ultimately, there is no blanket approach to medical cannabis in the workplace, and each use case needs to be assessed on a case-by-case basis with particular focus on the individual employee’s role.