Drug use can result in absenteeism, reduced productivity and ultimately contribute to bad morale in the workplace if other staff members have to pick up the slack. And employers should not think it does not affect their workplace.
But what is an appropriate and legal policy on drugs in the workplace? Should your business be screening employees? And if so, how and when should this be done?
It has been estimated by one drug-testing company that one in 10 Australian workers test positive to random drug and alcohol screening, and that nearly all workplaces screened for the first time record at least one positive result.
Drug and alcohol testing in Australian workplaces is less common than in the US, where it has been used increasingly since the 1990s and is now prevalent across many industries, especially among larger employers.
Its use in Australia is more common in industries where intoxication would present serious safety concerns – mining, transport and police. In some cases, there is specific legislation authorising mandatory testing – in aviation, for instance.
That position accords with the prevalent attitude of Australian workers; a study by the Privacy Commission in 2004 found that the majority of workers see random drug testing as appropriate, but only where necessary to ensure safety.
But many employers outside industries in this category are also interested in maintaining a drug-free workplace.
There are legal barriers to drug testing:
? Consent. An employee cannot be physically forced to undergo compulsory testing. The question is whether and how an employer can require consent as a condition to employment. One way is by incorporating the policy as part of a collective workplace agreement and (if necessary) applying to the Industrial Relations Commission to declare it fair and reasonable.
By way of example, in Pioneer Construction Materials v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian branch, the Industrial Relations Commission in that state ruled that a random urine testing policy was reasonable and upheld the standing down of two employees for refusing to comply.
? Privacy. There are a number of privacy issues regarding drug testing of employees. Collection of information regarding tests is likely to be categorised as ‘sensitive’ or ‘health’ information.
The collection and use of that information is regulated by state and federal legislation. Most obviously, all drug tests involve some degree of invasion of physical privacy.
The ‘national privacy principles’ (NPP) on personal data collection shed some light on the issue. Under NPP 1.1, the collection must be necessary, comparing the risk to the invasiveness of testing. This will be evidently easier to demonstrate in workplaces where intoxication creates a real safety risk, as employers are legally obliged to create a safe workplace under OH&S laws.
NPP 1.2 requires collection to be fair and lawful; accordingly, employers who want to impose random testing should create policies and procedures and communicate them effectively before conducting testing.
? Relevance to the job. Current testing methods are able to detect exposure to drugs, but not whether the person is impaired, because traces remain after the drug ceases having an effect. This is especially true of cannabis, which is detectable two to six weeks after use. Employees may object to testing on the basis that what they do outside work (whether legal or not) does not concern their employment relationship.
In one South Australian case, an employee refused to take a random drug test because he believed that marijuana consumed on the weekend would be detected and he did not want to develop a reputation as a drug user. The SA Industrial Relations Commission found his termination for refusing to comply to be harsh, unjust or unreasonable because the workplace policy was designed to test for impairment, not exposure.
This highlights the need to have a clear policy regarding the purpose of testing, the procedure for achieving that purpose and the procedure for dealing with a refusal to comply or a positive result.
Circumstances in which testing may be permitted
There are a range of circumstances in which an employer may want to perform drug testing:
? at the time of hiring, as a pre-condition to employment
? following an incident in the workplace
? on reasonable suspicion of intoxication, and
? random testing.
Employers should develop policies that offer guidance not just to employees but also to the managers who have responsibility for dealing with these issues.
The NSW WorkCover Authority has published a guide to developing a workplace alcohol and other drugs policy, which provides a useful outline of important considerations for employers.
Other state authorities and anti-drug and alcohol advocacy bodies have published a large range of material that deals with the subject. From an employer’s perspective, the key issues identified in the literature that affect the employer’s legal position are as follows:
? Ensure management is appropriately skilled in identifying and approaching potential substance abuse. This requires tact as things are not always as they seem; for example, employees may be suffering side effects from prescription medication.
? Have an education and information program about specific hazards in
your workplace and about drugs and alcohol generally.
? Provide support and counselling for employees who experience difficulties with drugs and alcohol. It’s also worth following the lead of many other employers and implement an Employee Assistance Plan or other counselling arrangement that employees can access, hopefully before drugs and alcohol become an issue.
? Identify the testing and tolerance protocols within your workforce. Clearly inform employees about testing methods, accuracy and the consequences of failing a test.
? Establish a clear reporting and disciplinary procedure.
Lessons for employers
Think carefully about whether you need to implement drug and alcohol policies to assist with OH&S compliance – identify the relevant hazards.
Develop clear policies on all aspects of the issue from hazard identification through to disciplinary procedures. Get professional advice.
Implement ongoing information and train your staff and your managers about your policies and procedures and how to comply with them.
Peter Vitale is the principal associate of CCI Victoria Legal and has been an HR lawyer for over 13 years.