What are the most common misconceptions about taking medical cannabis and going to work?

Earlier this year, a Brisbane man whose job involved loading and unloading ship cargoes was fired after testing positive for THC during a random workplace drug test.

Tetrahydrocannabinol (THC) is a cannabinoid commonly found in cannabis, and Michael Gauci had a doctor’s prescription for medical marijuana.

So after he lost his job, he filed an unfair dismissal claim against his employer, the multinational logistics company DP World.

But things didn’t turn out quite as he expected.

And as Belinda Winter, lawyer in the field of labor relations and safety, explains ABC Radio National’s The Law Reportthe case highlights the disconnect between Australia’s occupational health and safety laws and the use of medical marijuana.

Increase in prescriptions

Medical marijuana was legalized for the first time in Australia in 2016. Since then, the number of patients using the drug to treat chronic pain, anxiety and cancer-related nausea has increased annually.

In 2019, approximately 18,000 Australians were prescribed medicinal cannabis products.

By January 2024, that number had grown to approx a million patients, according to the Australian Health Practitioner Regulation Agency (AHPRA).

And the number of doctors and nurses who can now prescribe medical marijuana has also risen sharply.

In Mr. Gauci’s case, he used medical marijuana, in the form of an oil and a vapor, to treat a mental illness.

He had worked as a stevedore at DP World for almost twenty years and had an impeccable record prior to the drug test. Yet his claim for unfair dismissal was rejected by the Fair Work Commission.

So why did this happen?

Mr. Gauci was scheduled to start work on February 5, 2024. He started work at 7am and picked up a container box, before being told he had to take a random drug and alcohol test that day.

“On the day in question, his job involved operating heavy machinery while driving a so-called shuttle carrier. So it was quite a safety-critical role, which is a very important feature of this particular case and other safety-critical cases,” explains Ms. Winter out. .

Two days later, laboratory tests confirmed that the THC level in his urine was ten times higher than allowed under the company’s drug and alcohol policy.

“(Mr) Gauci said he was not impaired at the relevant time and was feeling fine. He took the medication 24 hours before starting a shift, but that did not withstand cross-examination as he was unable to confirm that specific amount he took,” Ms Winter said.

He was also concerned about disclosing the prescription to his employer and had withheld that information because he feared he would be fired.

Ms. Winter says it should be noted that when the doctor prescribed that particular drug, he had to sign an acknowledgment of receipt noting that he would not have to operate any heavy machinery or equipment.

So Mr. Gauci faced two problems, Ms. Winter explains.

The first was that he was required under the drug and alcohol policy to inform his employer that he was using prescription marijuana.

The second point was that he was not allowed to work if he exceeded the prescribed limits in the drug and alcohol policy.

While a Fair Work Commission commissioner sympathized with Mr Gauci’s situation, documents listed that they were “not satisfied that Mr Guaci’s personal circumstances outweigh his obligations to comply with DP World’s (alcohol and drug) policy”.

However, Ms. Winter says testing for limitations when it comes to medical or recreational marijuana is not clear.

She says it depends on many different things, such as how often the drug is taken, what the dosage is and the patient’s body type.

“So my understanding is that it is very difficult to test for impairment and that in the absence of impairment testing we really have to fall back on what the Australian standards say about what levels should be in our system,” she says.

‘Regulations need to catch up’

There are many medications that can potentially hinder performance in the workplace. They fall under occupational health and safety bans and include certain painkillers and sleeping pills.

“So this isn’t just about medical marijuana, but I think there can be misunderstandings about medical marijuana because not only can it be for recreational use, but it can also be prescribed.”

Ms Winter says there have been a number of cases similar to Mr Gauci’s in the mining sector. And where an employee is operating heavy machinery in the workplace, an unfair dismissal case is unlikely to go in his favor.

But for employees not involved in a safety-critical role, Ms Winter says, they may have stronger grounds to challenge unfair dismissal.

“Sometimes employers object to the mere use of medical marijuana or the presence of THC, and that can give rise to a number of different claims, including unfair dismissal and discrimination,” she says.

“So if you have an office worker who works in a standard office, and he or she may have the presence of THC in their system due to use a week ago, but there is absolutely no impairment and they do not play a safety-critical role, you can it would be (legally) dangerous for an employer to simply terminate that person’s employment in those circumstances.”

Ms Winter says each case is unique, but she would like to see a better testing regime for workplace restrictions.

“The regulations need to catch up and then employers need some help with testing and some help with understanding how to apply that in a particular circumstance.”

This article contains general information only. Consider seeking independent professional advice in relation to your specific circumstances.