The drug confessions of retired rugby league player Andrew Johns have recast the spotlight on drugs in the workplace, in particular, an employer's obligations to drug affected employees. A recent NSW decision of Marshall v Sydney Water Corporation specifically addressed this issue. 

Marshall was a longstanding worker for the employer, but had a history of drug use. Whilst going "cold turkey" off marijuana (without medical supervision), Marshall had an alleged psychotic episode at work during which he splashed blood on a female co-worker, intimidated and threatened to assault co-workers and deliberately damaged employer property. Marshall claimed that his subsequent dismissal was unfair because, amongst other things, the employer did not give him an opportunity for rehabilitation. 

Marshall's claim was rejected. The employer was not obligated to grant leave for rehabilitation in circumstances where Marshall failed to disclose his drug problem or details about his withdrawal prior to termination. The Commission indicated that disclosure would not have changed its final decision. Marshall was ultimately responsible for his own actions and there was a high risk of re-offending (as established by medical evidence) if Marshall was reinstated.

Lessons for Employers:

• Your duty to provide a safe system of work for employees is paramount
• The time at which an employee discloses their drug taking (if at all) will affect how you fulfil that duty. For example, if disclosure is made for reasons other than a workplace incident, you should consider assisting the affected employee (e.g. counselling, rehabilitation) and assess the workplace health and safety risks of his/her continuing employment. 
• You should consider the risk of an impairment discrimination and/or unlawful termination claim before terminating a drug affected employee.