Can You Be Sacked for Using Medical Marijuana in Australia?

Published on October 24, 2016 · Last updated July 28, 2020
Medical Marijuana

One August afternoon in 2013, ferry master Christopher Toms piloted a ferry into Cabarita Wharf in Sydney, Australia, colliding with one of the structure’s metal piles. No one was seriously injured, but later that day his employer, which had a zero-tolerance drug policy in place, asked him to take a urine test. The results showed the presence of cannabis, and he was fired.

Toms, who said he’d used cannabis the night before to relieve shoulder pain, filed an administrative challenge. He managed to win his job back, but a federal court later reversed the decision and he was again terminated, this time for good.

Did the cannabis from the day before have an impact on his ferry piloting? Would it have mattered if he had a prescription for it? And if Toms wasn’t impaired at the time, how much control should his employer have over what he does outside work, anyway? These questions weren’t answered in the course of his case, but they’re increasingly being asked by both patients and employers as medical cannabis moves forward in Australia.

“Cannabis can linger in the system for a long time after use, much longer than most other substances.”

Recent changes to legislation and the down-scheduling of medical cannabis mean that employers may need to reconsider zero-tolerance drug and alcohol policies. Because cannabis can be detected by urine analysis for days or weeks after consumption, it’s possible employers will shift their focus away from the simplistic goal of a “drug-free workplace,” and instead prioritize impairment and safety risks.

Danny King, a Sydney employment lawyer and a lecturer at the University of New South Wales, says that employers should realize that cannabis “is just another pharmaceutical.” Employers already have certain exemptions for prescription pharmaceuticals, King said, many of which can cause side effects. “Medical cannabis is no different in that respect to any other medication.”

Under that approach, employers would need to work out ways to manage and work around any side effects of medical cannabis, just as they would for employees who need to use prescribed painkillers, amphetamines, or other medications with side effects.

Employers may be able to fit medical cannabis into existing policy frameworks, but the main challengeis expected to be testing policies. “Cannabis can linger in the system for a long time after use, much longer than most other substances.” King said. As such, individuals would test positive for use without being impaired or otherwise under the influence.

There are two main types of on-the-spot drug tests in the workplace, saliva testing and urine analysis. While saliva testing is generally better for detecting recent use, cannabis metabolites can be present in urine for as long as a hundred days after use in some individuals. In other words, an employee who went on holiday in Amsterdam, where consumption is legal, could return to work and test positive for cannabis weeks later. And while saliva testing can give some indication of the concentration of THC, neither test provides a measurement for impairment.

Addressing the the question of impairment in an honest manner will be difficult, as it entails untangling various factors. Is a bus driver who didn’t sleep last night because of his screaming baby more or less impaired than one who takes a small, prescribed dose of cannabis before driving? What if it’s the same bus driver—in a crash, which reason is to blame?

While the policies are ripe for revision—legal states in the US have generally left rules alone, opting not to provide any protection from workplace drug tests—it’s doubtful the tests will ever go away completely. According to King, at least one thing is clear: “In industries such as mining where the safety of employees is a huge issue, drug tests are here to stay.”

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