Legalising something that was once illegal is a complicated business. There are logistical issues to work through, public opinions to shift, and a host of organisations that need to update their rules accordingly — and it’s doubtful all of these things will happen promptly.
Australia legalised medical cannabis in 2016. But, when it comes to societal acceptance and the number of medicinal cannabis approvals from doctors, we’ve come a long way.
In the workplace, however, we’re still lagging. Many employers have not updated their rules to accommodate or address legalised medical cannabis. This means that, as a patient, you must exercise due diligence in exploring your right to privacy as an employee, your rights as a patient, and your employer’s drug protocols.
This article will answer some of the most frequently asked questions about medical cannabis at work. Hence, you understand the landscape and can better assess your situation or seek legal advice if necessary.
Do You Need to Disclose Your Medical Cannabis Prescription to an Employer?
The short answer is no; you have a right to privacy as an employee and a patient.
Some employers have specific drug use and testing policies in their employment contracts. It’s up to you as a patient and employee to review this policy, ask any critical questions, and agree to comply before you sign.
There are also some professions where intoxication would be dangerous, and the use of medical cannabis is banned. For example, specific rules apply to people who drive for a living — this article on the rules around cannabis and driving is a great place to start.
If you operate heavy machinery or use equipment that requires precise hand-eye coordination, the use of medical cannabis may also be prohibited. Read your contract carefully and discuss any policies with your employer or lawyer before you sign.
Can Your Employer Fire You for a Medical Cannabis Prescription?
Unfortunately, Australia’s employee rights are not yet clear enough to stipulate whether an employee can legally be suspended for a medical cannabis prescription. Additionally, Australian workplace drug testing laws are murky, and many industries still perform random drug tests.
Again, it is essential to review your workplace’s policies. If you agree to a policy that prevents cannabis use and stipulates that drug testing may occur, a positive drug test result could lead to termination.
Were your case to escalate, a court would examine whether you, as an employee, breached the policy and whether it is valid in the eyes of the law.
Employee Rights in the Courts
While court cases are always challenging for the individuals involved, they can help to clarify rules and regulations on a grander scale. As a patient, it’s worth keeping abreast of court cases to understand your rights better.
One case that recently gained a lot of attention in the media was that of Mitchell Rice, a 26-year-old Queensland Rail support maintainer who was sacked after failing a drug test because he was taking prescribed medical cannabis.
Rice’s doctor prescribed him THC-rich flower to help with anxiety and sleep deprivation caused by shift work and being the primary caretaker for his mother, who was diagnosed with terminal cancer. Rice was advised not to take the medication within eight hours of starting work and emailed a supervisor at his depot to inform them of the prescription.
After a random drug test returned positive, Rice received his termination notice and decided to go to court. The court heard the case but has not yet shared the outcome.
In another case from 2018, a 64-year-old Sydney Trains employee was suspended after a random drug test came up positive for cannabis metabolites. In this case, the Fair Work Commission awarded reinstatement after finding that the incident was a one-off, was not deliberate, that there was inconsistency between relevant employee policies, and the guidelines were unclear.
How To Navigate Your Medical Cannabis Prescription in the Workplace
As we’ve stressed, you must fully understand your workplace’s policies around drug and alcohol use and procedures for drug testing. It’s also a good idea to share these policies with your doctor.
If you’re unsure, ask your doctor to write a note to your employer outlining the reason for your prescription and any other necessary details, then have a candid conversation with your employer to get on the same page before taking your medication. Follow up this conversation with an email or letter that summarises the outcome.