There has been considerable public attention recently concerning the sale and use of synthetic cannabinoid products, known by such names as “Kronic”, “Kalma”, “Voodoo”, “Kaos”, “Spice” and “Dust”.  These products use chemicals that mimic the effect of tetrahydrocannabinol (“THC”), the active ingredient in Cannabis.

Employers in the resources sector, in particular, became concerned as a result of reports that these drugs were being widely used in the mine worker community; that medical opinion clearly indicated that the effects of these substances could impact a worker’s health and ability to work safely; they could be ‘legally’ sold and used; many drug and alcohol policies were not wide enough to capture a ‘new’ type of drug; and most existing drug testing regimes did not specifically test for these substances.

The Western Australia Government has acted to ban these substances by gazetting a change to the Poisons Act 1964 on Friday 17 June 2011, to classify certain chemicals used in these products as “poisons”.  It has also been announced that amendments are to be made to the Misuse of Drugs Act 1981, meaning that the possession, selling and supplying of these products will become an offence. Other States will no doubt move on this issue as well.

Concern remains, however, that the legislative changes will not be able to keep pace with changes to the chemical makeup of similar substances, so that new, legal substances will emerge in place of these banned drugs.

For employers, the solution is to ensure that your fitness for work/drug and alcohol policies are drafted in a way that will capture the misuse of any sort of substance which could impact the ability to work safely. Many policies already deal with the misuse of legal substances (such as prescription drugs and alcohol).

It is also important that fitness for work/drug and alcohol policies and testing procedures allow sufficient scope for testing of ‘new’ substances. Many employers found they were locked into procedures which were not flexible enough to allow testing by Chem Centre which did have a test available for synthetic cannabinoid products.

Further, it should be of significant concern that some workers (media reports suggested up to 30% at some mines) saw an opportunity for conduct which could put themselves and their colleagues at risk because of a perception that it was not ‘illegal’ and they could not be caught. This suggests that further work needs to be done in education and culture on this issue. It also supports the implementation of testing regimes as a deterrent.

Employers in other industries should not feel that this is an issue they can ignore. Clearly the use of illegal drugs and the misuse of legal substances is an issue for all workplaces. All employers should assess the potential impact and ensure they have appropriate policies and procedures in place to meet duty of care and legislative requirements.