If your workplace policies haven’t been reviewed in the last 12–18 months, there’s a growing risk they’re already outdated, and potentially exposing your business to legal claims. With the rapid rise of medicinal cannabis, changing social attitudes, and evolving Fair Work decisions, the old “zero tolerance” approach is no longer enough.

THC and CBD are now mainstream

Cannabis, particularly medicinal cannabis, is becoming increasingly common across Australian workplaces. Employees are now using THC and CBD products to manage conditions like chronic pain, anxiety, and sleep disorders. This creates a complex challenge for employers as

  • THC can remain detectable long after impairment has passed
  • Employees may be legally prescribed cannabis
  • CBD products (non-psychoactive) are widely accessible
  • Traditional drug testing doesn’t always distinguish impairment vs presence

Put simply, a positive test doesn’t automatically mean an employee is unfit for work.

Recent Fair Work case a wake-up call for employers

Recent decisions from the Fair Work Commission highlight a critical shift. A positive THC test alone may not be a valid reason for dismissal. The Commission is increasingly looking at

  • Whether the employee was actually impaired at work
  • Whether policies were clear, current, and fairly applied
  • Whether proper process and investigation occurred

In fact, cases show

  • Employees have been reinstated or compensated where dismissal was deemed harsh or procedurally flawed (AREEA)
  • “Zero tolerance” policies are being challenged if applied rigidly without context (KWM)
  • Employers must consider individual circumstances, not just test results (DASA)

At the same time, there are also cases where dismissal was upheld, particularly in safety-critical roles reinforcing that context is everything. (HWLE Lawyers)

The real risk of outdated policies

Many businesses still rely on policies that

  • Focus only on detection, not impairment
  • Don’t address medicinal cannabis
  • Lack guidance on disclosure and medical assessments
  • Apply blanket zero-tolerance rules

This is where problems arise. Because under Australian law, a dismissal can be deemed unfair if it is “harsh, unjust or unreasonable” even if there was a valid concern.

What best practice looks like in 2026

Modern workplaces are moving towards more balanced, risk-based approaches. A strong, up-to-date policy should include

1. Clear Distinction Impairment vs Presence

Drug tests detect substances, not necessarily impairment. Your policy must reflect this reality.

2. Medicinal Cannabis Framework

  • Require disclosure (where appropriate)
  • Request medical evidence of fitness for work
  • Consider reasonable adjustments

3. Role-Based Risk Assessment

Safety-critical roles (e.g. machinery, driving) require stricter controls than office-based roles.

4. Fair & Consistent Process

Even with a positive result

  • Conduct a proper investigation
  • Allow employee response
  • Consider all circumstances

5. Manager Training

Your leaders must know how to

  • Handle disclosures
  • Have sensitive conversations
  • Apply policies consistently

Why this matters more than ever

Failing to update your policies doworesn’t just create HR headaches, it creates real business risk. With cannabis use becoming more common, these situations are no longer rare – they’re inevitable. The bottom line? This is no longer a “drug and alcohol policy” issue. It’s a workplace risk, legal compliance, and leadership capability issue. The businesses getting this right aren’t the strictest, they’re the most informed, consistent, and up to date.

How we can help

If you’re unsure whether your current approach would stand up to scrutiny, now is the time to act. We can support you with

  • Policy reviews aligned to current Fair Work expectations
  • Tailored drug & alcohol frameworks (including THC/CBD considerations)
  • Manager training (practical, scenario-based)
  • Psychosocial and workplace risk alignment
  • End-to-end support when issues arise

Don’t wait for a claim to find out your policy is outdated. Get in touch to review your current approach and ensure your business is protected, compliant, and set up for the future. Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.