Implementing a Drug and Alcohol Testing Policy
It is becoming more prevalent for employers to implement a drug and alcohol policy along with a drug and alcohol testing regime. If you are considering implementing these strategies in your workplace you need to be aware of, and give consideration to, a few important factors.
Workcover recommends that the decision to implement a drug and alcohol testing regime should be made in consultation with employees and union representatives (if applicable). The Occupational Health and Safety Act places a duty on the employer to consult employees when introducing or altering the procedures for monitoring workplace health and safety risks. Failure to comply with this duty will leave the regime at risk of being challenged by the unions or the employees at a later date.
Although everyone (employees and employers) have a role to play in workplace safety under the Occupational Health and Safety Act, the ultimate responsibility of providing a safe workplace rests with the employer. Workcover suggests that the emphasis of the drug and alcohol policy should be on providing a safe work place for all employees not ‘catching people out’.
Testing and Other Considerations
The Workcover Guide dealing with Alcohol and Drugs in the workplace suggests that your Drug and Alcohol policy should not just deal with drug and alcohol testing but should also give consideration to the following:
- Managing alcohol and other drug related health and safety risks;
- Approaching a worker who may be under the influence of alcohol or other drugs;
- Procedures for reporting alcohol and other drug use;
- Alcohol and other drug information, education and training;
- Counselling and support (Employee Assistance Programs); and
- Disciplinary procedures.
In addition, it should be noted that drug testing as the only way or means of managing drug and alcohol in the workplace has limitations. These include:
- A positive test for alcohol or other drugs may not amount to evidence of impairment or intoxication;
- It cannot be presumed that a worker is intoxicated if they refuse a test; and
- The test results can be the subject of legal challenge due to varying accuracy rates and possibility of contaminated or false positive results.
Random or Targeted?
Ordinarily, if testing is not to occur randomly or systematically, an employer will need to rely on evidence that a worker is affected by drugs or alcohol which can be directly perceived by sight or smell.
In some industries an employer may choose to periodically test employees before work or undertake random testing. Testing may also be “for reason” when an employer suspects an employee is affected by drugs and alcohol.
An employer needs to consider its rationale for testing. While testing may be accepted for workers who work in relatively dangerous environments or with dangerous equipment, testing office staff every day before work may lead to a dispute. Where it can be justified on an objective risk management basis, an employer does not have to implement a drug and alcohol policy identically in respect of all employees.
Privacy and Legitimacy
A regime needs to be established and agreed to by staff that gives confidence that results will be protected and not freely available.
In past decisions before the industrial relations commission, when reviewing a drug testing policy, arbitrators have assessed what type of testing is fair and reasonable, who should be tested and who should perform the testing.
If an employer chooses to introduce testing then it should develop and apply rigorous testing procedures (including ensuring that testing is undertaken in an accredited laboratory).
Both saliva and urine testing have their advantages and disadvantages. However neither form of testing is immune to challenge by an employee. It should be noted that in some cases urine testing has been found to be unjust and unreasonable. You also need to be aware of what each test discloses. Certain tests may produce different analysis. For example, a test may indicate the presence of a drug, but not indicate whether the employee is actually affected or impaired by the detected substance. The drug may be in the employee’s system but was used by the employee while on leave.
If you would like further advice in relation to the above or assistance with drafting and implementing a drug and alcohol policy in your workplace please contact Christie Howson or Alison Garland on 4925 2077.