How to navigate medical marijuana use in your workplace

FWC recently upheld (Sheldon Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465) the dismissal of an employee for failing, as per the employer’s policy, to disclose his use of prescription medical marijuana even though he disclosed it during a testing process and passed the test.

Our thoughts

The case highlights that it is not the actual test result or impairment, nor even the controversial nature of medical marijuana which is critical in managing drugs and alcohol– rather it is the ability of the employer to adhere to its primary duty and to proactively and effectively manage its WHS risks in the wider workplace. To meet its duty the employer, as a first step, needs to know whether there is medical marijuana use so it can manage potential risk.

Most drug and alcohol policies require immediate disclosure of an employee’s use of prescription drugs. Some even go further to require disclosure of over the counter (OTC) drugs in high-risk workplaces or work. Provided it is reasonably necessary to manage the WHS risks, and further that appropriate privacy and confidentiality requirements are put in place, employers have a fairly wide discretion as to what goes in their policies.

Waiting until test time for such disclosure will usually be ‘too late’ because it takes away the ability of an employer to manage whatever risks the prescription medication causes (from the very low to the extreme cases). There are a range of practical risk mitigation activities such as: tolerance periods, rostering, assignment of work, and use of machinery which could ordinarily be considered and implemented prior to testing.

Practical compliance with the prescription is also critical. There are still ‘safe levels’ of any prescription drug usage and misuse cannot be tolerated. Having a prescription for a drug like medical marijuana is not a ‘free kick’ to use the drug other than as prescribed.

Action Points

• Employers can legitimately require disclosure of prescription or OTC drugs to meet genuine WHS needs – risk assessments will assist demonstrating legitimacy.

• Continue to consult with your employees (and other workers) as to what levels of disclosure will be required and outline the privacy and confidentiality protections you will put in place to manage their sensitive information.

• Reinforce your policies with practical guidance and training.

• Build trust with your workplace by managing each situation on a case by case basis and where there has been a disclosure work through reasonable risk mitigation options with the employee.

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