Employment Law – Drug and Alcohol Testing
Background
Drug and Alcohol Testing should be introduced with consultation in a company policy. The rationale is to prevent or rehab rather than discipline employees. However, employers need to consider the reasonableness of implementing a policy. In addition, employers also need to consider whether it breaches privacy law.
Issues to Consider
In essence:
- Drug and alcohol testing should be introduced on work, health and safety grounds
- this is because industrial tribunals have generally determined that testing is an intrusion of individual privacy. Therefore, it can only be justified on work, health and safety grounds
- an employer has no control over what employees do in their own leisure time. Although conduct that may put an a person at risk or damage the company’s business and reputation can warrant control measures
- because such a policy is to be considered a workplace health and safety matter, consultation with all staff is required
- the policy is especially relevant in medium to high risk industries for instance manufacturing and construction
- furthermore, some industries will require such a policy under the relevant workplace health and safety law
- employers are obligated to attempt to eliminate the risk for employees impaired by drugs or alcohol. Conversely, employees may argue an intrusion into their personal lives
- failure to educate employees about the terms of the drug and alcohol policy can result in disputes in the workplace
- furthermore, the lack of a company drug and alcohol policy can also have negative implications for employers in unfair dismissal claims
Company Policy
A company policy on drug and alcohol testing should:
- aim to educate employees about the expected standards
- explain to employees their responsibilities
- stipulate the consequences of a breach
- refer to the types of substances which can cause impairment. Notably, alcohol, cannabis, methamphetamines including cocaine and ecstasy, and opiods such as heroin
- also consider referring to legal and prescription drugs such as sleeping pills because they also cause impairment
Method of Testing
In essence:
- the two most common methods of testing for illicit drugs are saliva and urine testing
- oral testing is more focussed on acute impairment
- urine testing is more likely to uncover drug use patterns
- the Full Bench of the (then) Fair Work Australia concluded that oral testing should therefore be adopted for a drug and alcohol policy
- urine testing is appropriate in certain circumstances
Tips for Employers
Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
- seek the assistance of an employment lawyer to prepare an appropriate drug and alcohol policy
- communicate to employees the drug and alcohol policy to employees
- consult with all employees the implementation of the drug and alcohol policy
- provide ongoing training and education to employees
- speak to an employment lawyer to determine the appropriate method of testing for the workplace
- consult an employment lawyer to consider the relevant privacy legislation. Consideration should be in conjunction with the company’s privacy policy
- prepare new employment law policies as required
- eliminate the risk of employees coming to work impaired by drugs or alcohol
- draft changes to current drug and alcohol policy with the assistance of an employment lawyer
- finally, engage an employment lawyer to consider relevant workplace health and safety law for certain industries
More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.
