Medicinal Cannabis and the Workplace

In 2016, it became possible to obtain a prescription for medicinal cannabis in Australia. Since that time, the use of medicinal cannabis has become widespread, with more medicinal cannabis products on the market and a larger number of medical conditions for which cannabis can legally be provided. However, many employers continue to be reluctant to hire staff who are taking medicinal cannabis. This page looks at the legal issues that exist around the use of medicinal cannabis and the workplace.

Medicinal cannabis and the law

The use of medicinal cannabis in Australia is highly regulated at both the Commonwealth and the state/territory level. A person wanting to cultivate cannabis or manufacture medicinal cannabis must have a licence to do so and must comply with strict rules about the storage and transportation of cannabis products.

Medical cannabis can only be supplied to a person who has a prescription for a cannabis product from a medical practitioner. Medical practitioners must apply to the Therapeutic Goods Administration (TGA) for approval prior to prescribing a cannabis product to a patient. This process takes about a week. If the TGA approves the prescription of cannabis to a patient, the medical practitioner may prescribe a cannabis product.

Cannabis products may be prescribed for a range of conditions including chronic pain conditions like fibromyalgia, multiple sclerosis, nausea associated with chemotherapy, and for epilepsy.

The use of cannabis without a prescription remains a criminal offence in all states and territories except the ACT.

Employers and medical cannabis

Since the introduction of medicinal cannabis in Australia, employers have had to deal with increasing numbers of employees who are taking medicinal cannabis products. If an employee is taking cannabis on prescription, their employer should deal with this in the same way that they deal with employees taking other prescription medications.

An employment contract may require an employee to disclose whether they are on any prescription medications that could affect their performance or safety at work. Some workplaces may also require workers to submit to drug testing. 

If an employer is aware that an employee is on medication that may impair their functioning and if it is reasonable, they may ask for evidence that the worker is fit to perform their duties. This will usually be in the form of a medical certificate saying what medication the person is on, whether they are fit for work and whether there is any limitation on their duties (for example, that they may not operate a vehicle).

Unfair dismissal

If an employer dismisses or refuses to hire a person because they are on medicinal cannabis without first determining whether they are fit for work, the employee may make a claim for unfair dismissal under section 385 of the Fair Work Act 2009.

A claim for unfair dismissal will be successful if the Fair Work Commission is satisfied that the worker’s dismissal was harsh, unjust or unreasonable. This will be determined based on all the circumstances including whether there was a valid reason for the dismissal and the procedures that were followed. 

Discrimination

If an employee is dismissed or treated less favourably because they are taking a medicinal cannabis product, they may make an anti-discrimination claim on the basis that this amounted to discrimination on the basis of a disability or impairment.

Under the Disability Discrimination Act 1992, disability discrimination can be direct or indirect. Whether a person has been discriminated against unlawfully will be determined based on a number of factors including whether ‘reasonable adjustments’ were made to accommodate the employee.

Case law

The Fair Work Commission has decided claims for unfair dismissal on the basis of medicinal cannabis use.

Sheldon Haigh v Platinum Blasting Services Pty Ltd 

In this 2023 decision, the Commission upheld the dismissal of the claimant from a ‘safety critical’ role, after he failed to inform his employer that he was taking medicinal cannabis which involved ‘a possibility of impairment’. This failure was a breach of the employer’s policies and procedures and of the man’s employment contract.

Sydney Trains v Gary Hilder 

In this 2020 decision, the Commission found that an employee was unfairly dismissed for breaching a Drug and Alcohol policy and Code of Conduct through the use of medicinal cannabis. The employer’s ‘zero tolerance approach’ to medicinal cannabis was found to be inconsistent with its disciplinary policies, which required mitigating circumstances to be considered.

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