With the increased use of marijuana for medicinal purposes, and increasing instances of employees being identified engaging in recreational drug use, employers need to balance the competing requirements of safety, discrimination and employment laws when employees return a positive results for medicinal or recreational drugs. The Commission has handed down several recent decisions that have highlighted the problems employers face when terminating an employee’s employment for breaching drug and alcohol policies, with some decisions resulting in reinstatement or compensation.
The increased attention on medicinal marijuana and other drugs in workplaces has resulted in the mining and resources arm of WorkSafe WA publishing an information sheet on medicinal cannabis in the workplace. This Information Sheet recognises medicinal marijuana and other drugs as safety risks in the workplace. Safety regulatory interest in medicinal marijuana and other drugs is likely to spread to other states in Australia in the near future, meaning that all employers need to be aware of the impact and management challenges of medicinal marijuana and recreational drug use in or affecting the workplace.
Recent Commission decisions regarding drug & alcohol policies
There have been several recent Commission decisions that have highlighted its focus on procedural fairness over other areas the Commission is not responsible for, such as workplace health and safety. These recent decisions have found deficiencies in the substance or application of employer drug and alcohol policies resulting in employees being reinstated or being awarded significant sums of compensation.
Adam Mills v Glamorgan Spring Bay Council [2025] FWC 116
In this case an employee, who was in a safety critical role, had notified his employer that he had been prescribed medicinal cannabis containing cannabidiol (CBD) for chronic pain resulting from a workplace accident. The employer was supportive of the employee taking this medication outside of work hours. However, the employee failed to notify the employer when his prescription changed to also contain tetrahydrocannabinol (THC).
Mr Mills later returned a positive test for THC and his employer was provided with medical reports which stated ‘despite not reporting any side effects, Mr Mills is still at an increased risk of impairment and adverse events when taking medicinal cannabis and therefore, from the information provided…. He is not fit to perform safety critical work while using medicinal cannabis for his chronic pain.’
The employer allowed the employee to consult with a medical practitioner about alternative treatments, however it was determined there were no other suitable treatments available. The employee stated that he was willing to stop taking the THC medication, however, the employer elected to terminate the employee’s employment, concluding that the employee was not able to perform the inherent requirements of his role safely.
The Commission found the employee’s failure to notify the employee that he was taking THC containing medications was a breach of the employer’s drug and alcohol policy and a valid reason for dismissal. Notwithstanding the valid reason for dismissal, the Commission found the employer terminated the employee’s employment without properly considering the terms of its own drug and alcohol policy which had a stated purpose ‘to provide a fair and flexible approach to alcohol and other drug matters which takes into consideration the individual, operational and environmental circumstances.’
The Commission found the employer did not allow the employee to continue exploring alternative treatments, or the option of resuming his duties while not using medicinal cannabis, despite the employee’s plea that he be given this opportunity. The employee was reinstated, awarded 27 weeks’ wages and had his annual leave and long service leave accruals reinstated.
Key takeaway: Employers should ensure that procedures set out in drug and alcohol policies are considered and followed and that avenues to resolve issues are properly considered before making the decision to dismiss.
Sydney Trains v Reece Goodsell [2024] FWCFB 401
An employer was ordered to reinstate and backpay an employee after the employee had been dismissed for returning a positive drug test result for cocaine, which the employee had taken outside of work. The Commission found that the trace of cocaine in the employee’s system was a breach of the employer’s drug and alcohol policy, which was a valid reason to terminate the employee’s employment.
Notwithstanding the valid reason, the Commission found that the termination was harsh and unreasonable due to the employee’s 26 year unblemished employment record, the drug use being in the employee’s personal time, and the person undertaking the drug test providing evidence that the employee did not appear impaired during the testing.
The Commission found the employer had a ‘zero tolerance’ approach to breaches of its drug and alcohol policy, that did not consider the employee’s personal circumstances or any mitigating factors. The Commission found that the employee did not understand that recreational cocaine use would affect his ability to comply with the drug and alcohol policy and that there was no evidence the employer had provided training to its workers about the policy.
Key takeaway: Employers need to take care when following a ‘zero tolerance’ approach to breaches of drug and alcohol policies, as such an approach can be procedurally unfair or discriminatory if it fails to take into account mitigating factors.
What does the WorkSafe WA Information Sheet provide?
The Information Sheet is clear that employees using medicinal cannabis have the potential to detrimentally impact their own health and safety, and the health and safety of others, in the workplace. Medicinal cannabis contains either CBD or THC, or a combination of both. CBD is known to cause fatigue and drowsiness, whereas THC has intoxicating properties which can affect cognition, short term memory, decision making and motor skills. THC can also cause a ‘high’ or impaired state, can have psychological effects and can have a similar effects on workers as alcohol has on drivers.
Medicinal cannabis can take effect within 30-60 minutes of ingestion that may then persist for 8-24 hours.
Employers or Persons Conducting a Business or Undertaking (PCBUs) have an obligation to ensure the health and safety of workers. The Information Sheet sets out some steps employers and PCBUs can take to manage the effects of medical marijuana in the workplace, including:
- developing policies and procedures on managing the use of medicinal cannabis in the workplace that are easy to understand and readily accessible to workers;
- consulting with workers, health and safety representatives and health and safety committees;
- identifying roles and tasks where impairment may present a risk to work health and safety, including safety critical work and roles;
- providing a process for workers to confidentially notify management;
- providing an assessment process, including medical advice on fitness for work;
- conducting a risk assessment and modification of work tasks where required; and
- running an education and awareness program for workers, supervisors and management.
What should employers be doing?
Employers will need to tread the line and consider the Information Sheet, safety laws, employment laws and discrimination laws when managing employees taking medicinal cannabis and other drugs. Employers should also review and update their drug and alcohol policies and processes to ensure that:
- the policy is clear and simply written;
- employees can understand their obligations under the policy;
- the policy is clear on what drugs are prohibited and in what context;
- there are records of employees being provided the policy and signing off that they understand its operation and contents; and
- the employer is taking into account each individuals’ circumstances and mitigating factors when making determinations about terminating an employee for breaching the drug and alcohol policy.
If you are concerned whether your policies and procedures are sufficient to meet your employment, discrimination and health and safety obligations, please contact us.
This article was written by Danielle Flint, Partner and Kayne Vague, Senior Associate.
