Victorian Inquiry into workplace drug testing

This article was co-authored by Emma Anvari.

A Victorian parliamentary inquiry report published in August 2024 concerning workplace drug testing (the Report) contains key recommendations relating to medicinal cannabis for both the Victorian Government and WorkSafe Victoria.

The terms of reference for the Victorian Legislative Council Legal and Social Issues Committee (Committee) included inquiring into the legislative and regulatory framework for workplace drug testing and “whether the framework for occupational health and safety and workplace drug testing may be improved to benefit medicinal cannabis patients, ensuring due process and natural justice in workplace settings, balanced against risks to occupational health and safety”.

As at the date of this article, the Victorian Government has not yet responded to the Report and it has 6 months to do so.

What is medicinal cannabis?

Cannabis is a complex plant made up of two key compounds, cannabidiol (CBD) and delta-9-tetrahydrocannabinol (THC). The Report states that “…THC is a psychoactive substance that may cause impairment, while CBD is not psychoactive and does not cause impairment. Medicinal cannabis products vary in the amount of CBD and THC they contain.”  THC is the compound that current testing methods, such as urine or oral fluid testing, can detect. Most medicinal cannabis products contain varying amounts of THC and CBD respectively and therefore, while CBD should not be detectable on a drug test, the presence of enough THC will create a positive result.

The Committee heard that there “…has been a rapid increase in the use of medicinal cannabis over the past several years. In April 2020, 583 patients were dispensed medicinal cannabis. By May 2024, this number had increased to 24,462 patients”. 

Committee Chair Trung Luu said that the rapid growth and prevalence of prescription medicinal cannabis means that there is uncertainty for some employees as to whether they will face employment consequences, if their employer finds the presence of medicinal cannabis in their system upon testing.

"We believe that the existing legislation around some workplace drug testing and the advice provided by WorkSafe on medicinal cannabis should be updated to provide more certainty", he said.

Testing for presence versus impairment

The Report emphasised the difference between the presence of medicinal cannabis in the system, and impairment because of cannabis usage, noting that testing for impairment was “problematic”.

The Report considered two definitions of ‘impairment’:

• The Lambert Initiative’s definition: “a deleterious effect on the performance of tasks”; and
• Alberta Advisory Committee on Impairment in the Workplace: “a disturbance of functions from any cause that results in an unacceptable risk of an individual being unable to safely perform a task at work. The point at which this disturbance in function becomes an unacceptable risk in terms of job performance depends on the job at hand and its hazards”.

The Committee heard that depending on the dose of cannabis taken, the impairment can last up to eight hours when inhaled and up to ten hours when taken orally. Where urine testing is conducted, traces of medicinal cannabis can be detected up to 72 hours after consumption. However, the Committee heard that “a positive test for cannabis does not necessarily equal impairment”.

This presents a challenge for employers navigating the complex issue of ‘impairment’ when implementing testing regimes, as opposed to testing regimes based on detection of the presence of cannabis.

Recommendations for the Victorian Government

One of the key recommendations in the Report is for the Victorian Government to, through policy, support the principle that in industries where drug and alcohol testing is not mandated, drug testing should only be initiated where employers have a well-founded belief that an employee is impaired at work. The Report emphasised that testing should only occur in the context of a comprehensive drug and alcohol testing policy and framework as agreed by employers and employees.

Further recommendations for the Victorian government included amending the definition of discrimination in section 7 of the Equal Opportunity Act 2010 (Vic) to clarify that where a person uses prescription medication or requires medical treatment for a disability, that this is a characteristic that a person with that disability generally has.

The Report also suggests that the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and/or the relevant regulations be amended to include key principles around alcohol and drug (including prescription medication) testing, which would address the employee's right to privacy and dignity, a commitment to workplace education, and appropriate support measures.

In addition, it was recommended that amendments to the OHS Act should articulate the way testing should be carried out.

The key suggested methods for testing for impairment considered by the Committee were:

• the Druid test: a smartphone app that tests the employee’s balance through their phone as they hold the phone in one hand and stand on one leg;
• the visual-spatial tracking test: a test where the individual must move their finger on the screen following a dot; and
• the oral fluid tests: oral fluid tests are good at detecting the presence of cannabis in individuals who smoked cannabis in the last 1-2 hours preceding the test.

Professor Ian McGregor from The Lambert Initiative for Cannabinoid Therapeutics at the University of Sydney suggested using a combination of the above testing methods as they “are sensitive to THC impairment”. Professor McGregor suggested a “combination of oral fluid testing with a very high cut-off…plus something looking for deviation in a Druid test”.

He also highlighted that it is “very difficult to show impairment in people who are daily regular users of cannabis” and that most laboratory testing has been conducted with occasional users who are “likely to be much more impaired because [they] have no tolerance towards THC”.

Report’s recommendations for WorkSafe

The Report's recommendations for WorkSafe were to:

1. establish a framework to ensure workplace drug policies are communicated clearly in a way that is visible and accessible to all employees;
2. investigate impairment testing methods, particularly the current medicinal cannabis closed track driving trial, and publicly advise on their applicability to workplace drug testing;
3. to convene a working group of key industry stakeholders to complete projects such as:
   1. updating the 'Guide for developing a workplace alcohol and other drugs policy'; and
   2. develop a Compliance Code which will ultimately be accompanied by a comprehensive education campaign.

While the Report’s minority also supported amendment of the OHS Act, they were concerned about the need for employers to have “…clear, actionable authority to conduct workplace drug testing as an essential safeguard” under the OHS Act so that they can “…enforce safety standards without fear of legal repercussions”.  

The South Australian Inquiry

The recent Interim Report of the Joint Committee on the Legalisation of Medicinal Cannabis (the South Australian Inquiry) also considered the gap between workplace treatment of medicinal cannabis versus other prescription medications with the potential to cause impairment.

Specifically, the South Australian Inquiry recommended that consideration be given by the Minister for Industrial Relations and Public Sector (Minister) to specific regulation of workers where it is unlawful for such workers to undertake their duties with THC present in oral fluid or blood, permitting them to undertake their duties where they:

1. have been prescribed medicinal cannabis containing THC in accordance with the relevant legislation;
2. are using their medication in accordance with the prescription;
3. have zero blood alcohol concentration; and
4. are not impaired.

Further, that the Minister give consideration to creating a requirement for PCBUs to treat medicinal cannabis in the same way as other prescription medications when drafting workplace health and safety policies.

The South Australian Inquiry recommended that such changes be accompanied by an education program for the benefit of persons conducting a business or undertaking and Health and Safety Representatives so they can better understand the risks and benefits of allowing “…workers to undertake their duties whilst receiving treatment with…[medicinal cannabis] products containing THC”.

Like the Victorian Report, the South Australian Inquiry focussed on, amongst other things, the issues connected with recognising and testing for impairment arising from the use of medicinal cannabis.