Under the Equality Act 2010, employers have a legal obligation to make reasonable adjustments for an employee who is disabled in certain circumstances.

The Equality Act 2010 defines when a person is disabled, although ultimately, only an Employment Tribunal can definitively determine whether a person is disabled within the meaning of the legislation. If there is a duty to make a reasonable adjustment, this may include the use of prescribed medicines at work. Where an employee is disabled and put at a substantial disadvantage due to particular circumstances in comparison to a person who is not disabled, an employer must take such steps that are reasonable to avoid the disadvantage or to provide a relevant auxiliary aid.

An employer also has a duty to comply with its health and safety obligations and any other regulatory requirements.

An employer must also act with trust and confidence towards an employee.

As with any medication, it is needed to alleviate or prevent the symptoms of a condition. Often in the case of vaping cannabis, the medical user will decide when it is needed, although they may have a typical daily frequency. A herbal vaporiser is used as a medical device*, designed to administer medication without combustion and so is absent from current legislation for smoking or vaping ecigarettes indoors. The method of vaporisation is safe and will not usually affect others in the vicinity.

*There are a limited number of herbal vaporiser devices approved by the MHRA as a medical device (e.g. Storz & Bickel Volcano Medic and Storz & Bickel Mighty Medic). However, due to financial burdens and individual needs, some patients may use a herbal vaporiser, not approved as a medical device, although its use remains within the guidance set by their prescriber.

There may be people who dislike the smell of cannabis or believe that an illegal activity is occurring. It is important to understand that the vape device is a medical device (which does not cause combustion less smell) which administers medical treatment prescribed for the person’s condition.

A notable proportion of medical cannabis patients have a disability, while others may have mental health conditions. It is never unlawful to treat a disabled person more favourably than a non-disabled person. Therefore, employers may provide adjustments on more favourable terms to a disabled person compared to a non-disabled person.’ However, an employer will still have to consider other factors relevant to a situation to ensure that it is acting lawfully overall.

The definition of a person who has a disability under the Equality Act 2010 is a person who has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

Persons who are legally prescribed medical cannabis can lawfully possess and carry their medication under section 5(1) of the Misuse of Drugs Act 1971 (restriction of possession of controlled drugs) because of an exemption in regulations made under section 7 of that Act (authorisation of activities otherwise unlawful under foregoing provisions).

If your organisation carries out drug testing, people who use medical cannabis are likely to show positive results for cannabis/THC. Whether or not a positive drug result for cannabis would be grounds for disciplinary action will depend on a number of factors and the appropriate investigations would be required to conform the prescription and its use, the potential impact on the individual and the risks in the workplace. It is also worth noting that cannabis remains in the bloodstream for up to 28 days, far beyond any period of potential impairment.

Furthermore, the use of prescribed medicines in the workplace must comply with the Health and Safety at Work Act etc 1974, which places a duty on employers to ensure, so far as reasonably practicable, that employees and anyone affected by the employer’s undertaking, is not exposed to any risk to their health, safety or wellbeing. Employers must carry out and keep up-to-date comprehensive risk assessments to identify risk and then, so far as reasonably practicable, put in place effective control measures to eliminate or reduce risk.

The use by an employee of medical cannabis should be considered as part of an employer’s risk assessments. Vapour is non-toxic and while it may be unlikely to affect the health, safety and welfare of other employees, this may be a relevant factor for employers to consider. However, medical cannabis can cause impairment in some people prescribed it and impairment is a key area where risk assessments should focus attention, especially when driving or operating heavy machinery or where there are other health and safety or regulatory requirements.

The general guidance from consultants and manufacturers of medical cannabis is ‘do not drive or operate heavy machinery if impaired’, as is the guidance for many other medications. People who are prescribed medical cannabis can drive and operate heavy machinery so long as they are not impaired and are following the directions from the person who prescribed the drug or the supplier, and with any accompanying instructions (so far as they are consistent with any such directions) given by the manufacturer or distributor of the drug as per Section 5A (3) of the Road Traffic Act 1988.

In summary, employees who are disabled under the Equality Act 2010 may have a legal right to reasonable adjustments to accommodate their disability in certain circumstances. A reasonable adjustment may include the self administration of prescribed medicines; employers must also comply with regulations, other legal requirements and ensure, so far as reasonably practicable, the health and safety of their employees. We recommend that employers discuss these potential issues with the employee.