By Rachael Sutton, Partner and Geoff Bloom, Partner

NSW has moved toward a more nuanced road-safety framework for prescribed medicinal cannabis users, but it has not created a general right to drive or work while affected by THC. Employers with workers who drive as part of their duties should update policies, risk assessments and testing procedures so they distinguish between lawful prescription use, detected THC and actual fitness for work.

What has changed in NSW?

The NSW Government introduced reforms directed at drivers who are prescribed medicinal cannabis containing THC. The reforms are designed to reduce automatic penalties for eligible prescribed patients who test positive for THC but are not impaired, while retaining roadside testing and other road-safety controls.

Under the proposed framework, eligible drivers must hold an unrestricted NSW driver licence, register with Transport for NSW, provide proof of a valid prescription and complete an online education program. Roadside drug testing continues. A positive roadside test still results in an immediate 24-hour driving ban pending laboratory analysis. If the laboratory result is below the THC maximum concentration, no further action is taken. If the result is at or above the maximum concentration, a first or second detection within two years attracts a warning, while a third detection can result in penalties including a fine and licence suspension. Maximum concentration is defined as, for a person’s oral fluid—50ng/mL, or for a person’s blood—3.5ng/mL.

The regime is deliberately limited. It does not apply to learner, provisional or interlock licence holders, unauthorised drivers, or drivers in several higher-risk transport categories, including buses, taxis, rideshare vehicles, certain heavy or dangerous goods vehicles and driving instructors. It also does not protect any person who drives while impaired, or where alcohol or other drugs are also present.

Why this matters for employers

For employers, the practical issue is not confined to whether an employee can avoid a road-rule penalty. The more important question is whether the employee is fit to safely perform the inherent requirements of their role, including driving, operating plant, attending work sites, responding to emergencies or making safety-critical decisions.

A valid prescription does not, of itself, certify that an employee is safe to drive for work. THC may impair attention, coordination, judgement and reaction time, and testing may detect THC after the period of impairment has passed. Employers therefore need a framework that manages risk rather than treating every positive test, or every disclosure of medicinal cannabis use, in the same way.

The NSW Government has acknowledged that the maximum concentration THC levels do not have any significant scientific basis, calling it a “commonsense reform”. Contrast that to alcohol, where decades of epidemiological research support legal blood alcohol concentration limits. The lack of a scientific basis has been called out by, among others, twenty doctors — including trauma surgeons — who have signed a statement arguing the threshold has no scientific basis for driving impairment and warn the law may increase road trauma.

Confusingly, that means that a test result under the maximum concentration does not necessarily establish fitness to drive or work, and a test result over the maximum concentration does not necessarily establish unfitness. Compare the situation to other medications, such as opioids or sleep medicines, which are not the subject of driving tests, and where users are left to make their own judgement about level of impairment.

Medicinal cannabis use in Australia is no longer marginal. An Australian Institute of Health and Welfare National Drug Strategy Household Survey found that in 2022-23, approximately 3.0% of Australians aged 14 and over, or about 700,000 people, had used cannabis for medical purposes in the previous 12 months.

Work health and safety duties

Under the Work Health and Safety Act 2011 (NSW), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers and others. Employees who drive for work may create risks not only for themselves, but also for passengers, pedestrians, other road users, clients and co-workers.

Employers should identify driving and other safety-sensitive tasks, assess the likelihood and consequence of impairment, and implement controls such as disclosure processes, fitness-for-duty assessments, supervision, scheduling controls, alternative duties, medical reviews and incident-response testing. The level of control should be proportionate to the risk: a field employee driving long distances, a heavy vehicle operator and an office-based employee who occasionally drives to a meeting will not necessarily require the same controls.

Drug screening and testing at work

Workplace drug and alcohol testing remains available where it is lawful, reasonable, clearly authorised by policy and applied fairly. However, employers should review whether their testing program is fit for purpose in light of medicinal cannabis use. Oral-fluid testing is commonly used to indicate more recent use, while urine testing may detect historical exposure and may be less useful for assessing current fitness for duty. No common workplace test perfectly measures impairment.

Policies should explain what will happen if an employee returns a non-negative or confirmed positive result, including whether the employee may disclose a prescription, what medical information may be requested, when the employee may be stood down from safety-sensitive duties, and how confidentiality and procedural fairness will be maintained. Employers should avoid automatic disciplinary outcomes that fail to consider prescription status, role risk, impairment evidence and the employee’s opportunity to respond.

Managing disclosure of medicinal cannabis use

Employers can generally require employees to disclose medication that may affect their ability to work safely, particularly in safety-sensitive roles. The requirement should be limited to safety-relevant information and should not require unnecessary disclosure of the underlying medical condition. A practical policy should require employees to notify the employer if they are prescribed medication that may impair driving or other safety-critical duties, and to provide medical evidence about fitness for work where reasonably required.

Medical information should be handled confidentially and shared only with those who need it to manage safety, rostering or role adjustments. Employers should also consider whether independent occupational physician advice is required, particularly where the employee’s treating practitioner has not addressed the actual driving demands of the role.

Discrimination and adverse action risks

Medicinal cannabis is often prescribed for medical conditions that may constitute a disability. Employers must therefore take care not to treat an employee unfavourably because of a disability, because they use prescribed medication, or because they have raised a workplace right. Anti-discrimination and general protections risks are heightened if the employer acts reflexively on a prescription disclosure or a positive THC result without considering the employee’s role, the safety evidence, reasonable adjustments and the inherent requirements of the position.

That does not mean employers must permit unsafe work. Action may be justified where it is directed to managing genuine safety risks, complying with WHS obligations or confirming whether the employee can perform the inherent requirements of the role. The key is to follow an evidence-based and procedurally fair process.

Practical steps for employers

• Review drug and alcohol policies so they expressly address prescribed medication, medicinal cannabis, disclosure obligations, testing methods, confidentiality and procedural fairness.
• Identify roles involving work driving or other safety-sensitive duties and update risk assessments accordingly.
• Train managers to respond appropriately to disclosures and positive tests, including when to seek HR, legal or occupational medical advice.
• Consider whether current testing methods align with the organisation’s safety objectives and the type of work performed.
• Develop a consistent process for temporarily removing an employee from driving or other safety-sensitive duties where there is a reasonable concern about impairment or fitness for work.
• Seek targeted medical information about functional capacity, timing of medication, side effects, driving restrictions and any recommended controls.
• Consider reasonable adjustments, such as altered duties, modified rosters, temporary non-driving work or revised travel arrangements, where these manage risk and do not impose unjustifiable hardship.
• Keep records of risk assessments, conversations, medical information relied on, decisions made and reasons for those decisions.

Policy position for work-related driving

Employers should make clear that employees must not drive for work while impaired by medicinal cannabis, alcohol or any other drug, regardless of whether the substance is prescribed or lawful. Employees should also be required to comply with road laws, licence conditions and any company direction not to drive where the employer has a reasonable safety concern. For higher-risk driving roles, employers may need stricter controls, including pre-placement medical assessment, regular fitness-for-duty review, targeted testing and clear consequences for non-compliance.

Conclusion

The changes are an important development for prescribed medicinal cannabis users, but they do not remove the need for employers to manage workplace safety. For employees who drive as part of their job, the safest approach is a balanced one: recognise lawful medical treatment, avoid discriminatory assumptions, assess the actual risks of the role, and take proportionate steps to ensure the employee is fit for duty.