The implementation of workplace drug and alcohol testing is a sensitive and complex issue. It is not uncommon for employers in certain industries such as mining, transportation and correctional services, to impose mandatory alcohol and illicit drugs testing for all employees, however careful consideration needs to be given to the corresponding legal obligations owed by an employer vis-à-vis the employees’ privacy and safety. More and more often, the industrial Courts and Tribunals routinely accept that random testing in the workplace is an intrusion on the privacy of the individual and are reluctant to condone such practices other than on genuine health and safety grounds.
In this regard, as an employer there is a legitimate interest (and indeed obligation) to eliminate, insofar as reasonably practicable, health and safety risks at the workplace including the hazards inherently associated with the consumption of alcohol or use of illicit drugs. Beyond this, however, an employer has no right to dictate what alcohol or drugs an employee experiments with in their own time. Given the current legal environment, the introduction of an alcohol and drug testing policy can be a powerful tool for employers, and this is particularly the case where testing is random, rather than ‘for cause’. However, employees and their union representatives are very cautious about the implementation of such policies and this issue can create significant industrial angst.
How to therefore construct an appropriate alcohol and drug testing policy (including for random selection) can be a fundamental challenge for some employers. This is especially difficult in certain types of industries where the issue of impairment through the use of such substances raises less risk (and in some circumstances, virtually zero risk) as opposed to other sectors where the occupational risks are ostensibly much greater. Before examining the issue of policy creation in relation to this issue, employers should consider whether it is desirable (or indeed beneficial) for contracts of employment to specify whether employees are required to comply with specific policies. It has been observed that an employee who refused to undergo a drug test requested by their employer in circumstances where the employee’s contract expressly referred to the policy as a contractual requirement failed to comply with a lawful and reasonable direction and was capable of giving rise to grounds for a valid reason for dismissal: see Briggs v AWH Pty Ltd [2013] FWCFB 3316.
In determining whether to introduce a drug and alcohol policy it is important for employers to ensure that any such policy is not intended to be used for the covert purpose of catching and sacking employees or to discriminate against certain classes of employee. The only legitimate purpose is to modify employee behaviour so as to prevent employees from attending for work under the influence of alcohol or drugs, and are able to safely perform work. Furthermore, if employers wish to introduce such a policy, they ought to consider the following issues:
- the method through which the test is carried out (discussed below);
- if a positive test result is confirmed, who is the appropriate person to speak with the employee to validate the result (preferably a medical practitioner), and the options for treatment or rehabilitation moving forward;
- giving the employee an opportunity to respond to a positive test result, and consider whether there is any aggravating or mitigating factors which should be taken into account;
- depending on the employer’s policy and whether the positive test result is part of pattern of repeated conduct, what kind of disciplinary sanction is appropriate, for example, determine if summary dismissal is warranted;
- what reasonable assistance (including education) may be offered to an employee with a drug or alcohol problem, and ensuring that access to time off to address such problems is facilitated in the same way as an otherwise ill or injured employee;
- whether it is appropriate to notify the Police or other authorities in cases of high-level work health and safety breaches; and
- how disputes relating to the enforcement of the policy should be addressed.
To date, no Australian State or Territory has enacted a legislative scheme for the testing of alcohol or drugs in the workplace. In the absence of any clear legislative guidance, there has been no consensus reached in the decisions of industrial Courts as to what is the most appropriate method of testing, however, the preferred approach is the collection and analysis of a urine or saliva sample. Although urine testing has been argued as the more accurate means to detect and determine whether an employee has consumed a range of drugs which may still be present in their system, albeit not having any impairing affect, saliva testing has been argued as being able to identify present impairment from drug use because it is designed to detect very recent usage. Although each method has its advantages, the Fair Work Commission in a recent full bench decision held that a mining company can properly use either method of testing to enforce its rules on drugs or alcohol use: Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075
If an employer has a proper drug and alcohol policy in place, it will go a long way in enabling an employer to dismiss an employee for serious misconduct should the employee return a positive result for alcohol or drug use at the workplace, and displays behaviour consistent with them being intoxicated or under the influence of drugs at work. Similarly, an employee who knowingly produces a sample in response to a drug test that has been adulterated may be guilt of serious misconduct: Ruddell v Camberwell Coal Pty Ltd t/a Integra Open Cut Mine [2010] FWA 8436.
Drug and alcohol testing is a defensible response to an employer’s legitimate concerns regarding productivity, integrity and brand reputation, and most importantly safety compliance. It is essential, however, for employers to be clear about the reasons for testing certain employees, and whether it is merely to detect usage or actual impairment exclusively during work hours. It is in this context that the Fair Work Commission provided a firm warning to employees in the decision of Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249 overturning the decision of the primary judge and dismissing the Appellant’s unfair dismissal application. In this case, the Applicant was employed as Master of a vessel. He was called into work on short notice, and lost control of the vessel which resulted in an accident. The Applicant subsequently tested positive to marijuana via a urine sample. He argued that given he was not rostered to work and had used the drug in his own time, that his dismissal for breaching the policy was unfair. In overruling the primary judge’s decision in favour of the employee, the Full Bench commented as follows:
“As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.”
In view of the line of existing authorities and permissibility of adopting a zero-tolerance policy to alcohol or drug use in the workplace, is vital for employers to have effective policies in place for managing such issues. This is not only relevant for employers in industries which have inherent risks associated with employees who may be under the influence of drugs or alcohol. It is equally permissible for employers to base the reason for a zero-tolerance drug and alcohol workplace on the need to maintain an appropriate workplace culture and for the protection of the employer’s reputation. The policy however needs to ensure to the extent possible that employee privacy is maintained and protected. Indeed the time is ripe for employers to act now to implement such processes. If you wish to discuss any aspect of this article or require specialist advice or assistance in drafting appropriate workplace polices or any other employment law matter, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.