By: Amanda Douglas, Kirstie Wyss
Published: 9/06/2013
Everyone knows that an employee who turns up at work under the influence of drugs or alcohol poses a very real risk not only just to their own safety but also to the safety of other employees and customers - especially where the operation of heavy machinery is involved.  This doesn't always (but can) involve blatant drug or alcohol use at work.  Sometimes, as an employer, you are dealing with the after-effects of drug or alcohol use by your employee the night before.  In other instances, you are trying to screen for drugs and alcohol in a safety sensitive area.

This can lead to tricky employment issues that must be navigated to ensure that all obligations are met.  This starts with a detailed policy on drug and alcohol testing.

Health and Safety

Employers are justified in implementing a drug and / or alcohol testing policy in the workplace due to health and safety requirements.  The proposed drug and alcohol policy needs to be linked to the risk of harm, for example where heavy machinery, or vehicles are involved.  However, this is subject to the employee's right to privacy.  Testing may not be justified in some jobs, as privacy may outweigh any potential safety issues that the testing would address. 

Testing Policies

If employers want to be able to test for drugs and alcohol, you need to have a drug and alcohol policy in place.  To do that, you need to consult with the employees, particularly if the company's employment agreement says consultation will occur. 

Consultation, however, does not require agreement from the employees.  Instead, it involves setting out the proposed testing procedure and the circumstances that will lead to testing.  The policy should be in writing and provided to all employees.  Their views should be obtained. 

There are a number of things that the policy should include, including statements about the provision of a safe and healthy workplace, and an explanation of the connection between the risk of harm and the proposed testing steps.  In addition, the policy should include:
  1. Proposed procedure for testing for drugs and alcohol.  This should specify the method of drug testing.  The less intrusive the method, the more likely the policy will be considered to be reasonable, if challenged.  Drug and alcohol policies should be dynamic to allow for new testing options.
  2. Set out how the results will be reviewed.  The Court has endorsed strict guidelines in accordance with Australia/New Zealand standard procedures. 
  3. Situations which give rise to the testing.  Testing is commonly carried out at these times:
    1. After an accident or incident, such as a crash or a "near miss".
    2. When an employee is to be transferred to a safety sensitive area.
    3. Where the employer has reasonable cause to suspect that an employee's behaviour is an actual or potential source of harm to others because they are affected by drugs or alcohol.  This can be as a result of use while at work, or outside of work hours, but which affects the employee's safety at work. 
    4. At random times.  This is the most controversial method and is usually only reasonable if the employee is employed in a safety sensitive area.  It is for the employer to determine safety sensitive areas, in consultation with employees.   This usually includes the health, safety and sometimes the lives, of the employees, fellow workers and members of the public.  For example, positions involving dangerous goods or equipment, such as the transportation and construction industries.  
  4. Clearly state the cut off limit for results (i.e. what is a 'positive' result) and which drugs will be tested.  A zero limit may not be reasonable, especially where the law already sets a limit, for example, breath and blood alcohol for driving .
  5. Consequences of a positive test.  In this situation, disciplinary action is lawful, but the policy needs to expressly say that disciplinary action is a possible consequence of a positive test. 
  6. Confidentiality clause.  Care needs to be taken with test results.  The policy should spell out who sees the results (i.e. senior management).
What if an employee refuses to test?

If an employee does not consent to testing, possible investigation or disciplinary action could follow.  Often, consent involves a choice between two alternatives, namely to accept testing, or to refuse testing and potentially face disciplinary action.  The policy should discuss the consequences if an employee does not consent to testing when required  to ensure that these issues are clear to employees. 

What if a test is positive?

Following a positive drug or alcohol test, disciplinary action is lawful, but only if the policy expressly says that this is a possible consequence.  There are a range of outcomes including suspension, rehabilitation programme, warnings and dismissal.  The right outcome depends on the individual situation and the role.

These steps all have specific procedural requirements that should be followed and the key is to ensure that rash decisions are not made. 

Conclusion

It is important that a drug and alcohol testing policy is clear and carefully followed by the employer.  The majority of cases where employees successfully brought a personal grievance for treatment over drugs and alcohol were because the employer failed to follow the procedure they had set out in the policy.  

Whatever the scenario, there are careful procedures to follow when preparing a policy, following the steps in the policy, and acting on only positive tests.  You need clear documentation, good processes and advice and careful management, so that you can deal with these issues without concern.  
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