Who can be tested for drugs and alcohol at work, and when? Greg Harrison and Margaret Chan explore the options of this contentious issue.
Who can be tested for drugs and alcohol at work, and when? Greg Harrison and Margaret Chan explore the options of this contentious issue.
Drug and alcohol testing in the workplace has always been a contentious issue, striving to balance the competing needs of employers’ obligations under work health and safety legislation to ensure the health and safety of their workers and employees’ concerns about their privacy.
Who can be tested and when?
Theoretically, all employees can be tested for drug and alcohol use. However, testing is predominantly used in industries and roles where there would be a high level of risk to the health and safety of employees and others if an employee was to work while “under the influence”.
While random testing and post-incident testing are most common, employers may also impose a contractual requirement that employees submit to drug or alcohol testing prior to commencement of their work day or shift.
The key thing for employers to note, however, is that the imposition of such tests, the group of employees to be tested and the frequency with which tests are administered, should be determined based on considerations of the employees’ roles and be able to be justified by reference to the health and safety risks.
Can an employer dictate what testing method is used?
The short answer is yes – but this is subject to the qualification that the method chosen is not “unjust and unreasonable”
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Recent decisions have confirmed that what is just and reasonable will generally be ascertained by reference to the purpose of the testing. Usually, testing is conducted to enable the employer to ascertain whether the employee may be impaired following the consumption of drugs or alcohol and therefore not fit for work.
Two common drug testing methods currently used in Australia are urine testing and oral fluid testing. While some employers appear to favour urine testing, unions and employees argue that oral fluid testing should be used instead, since it is most effective a few hours after drug consumption – indicating recent consumption and possible impairment. In contrast, urine testing may return positive results several days after consumption when an employee is no longer impaired, but would reveal to the employer what employees do in their own time, raising issues of privacy.
With evidence indicating that neither method is currently considered to be more accurate nor superior, oral fluid testing is a quicker, less offensive and reasonably reliable means of determining an employee’s fitness for work and therefore less likely to be viewed by the Commission as “unjust and unreasonable”.
When is an employee ‘over the limit’?
Employers can (subject to any legislative limits applying to certain occupations) set
their own limits through their policies – including adopting a zero tolerance approach, but should ensure their managers are aware of their obligations under these policies.
In early 2012, an employee dismissed for failing her employer’s pre-shift breath test on two separate occasions was reinstated after Fair Work Australia identified inconsistencies in the permissible Blood Alcohol Concentration limit found in her employer’s policies and heard evidence that her managers had failed to apply the disciplinary procedures set out in the policy consistently.
However, consistency does not mean that the same threshold needs to apply to all roles within an organisation. Although it may seem unfair, the Endeavour Energy decision last year confirmed that it is perfectly acceptable for different thresholds to apply to different groups of employees. In fact, having a “one-size-fits-all” approach could actually be unjust and unreasonable.
Instead, employers should conduct a risk analysis of all roles and determine thresholds accordingly.
Ultimately, for any drug and alcohol testing regime to be successful, it is important to gain the trust of employees by engaging them in education and training programs prior to roll-out.
References
1. Australian Federated Union of Locomotive Engineers v State Rail Authority of New South Wales (1984) 295 CAR 188
2. Endeavour Energy v CEPU [2012] FWAFB 4998; CFMEU v HWE Mining Pty Ltd [2011] FWA 8288
3. Wendy Day v Sodexo Remote Sites Australia Pty Ltd [2011] FWA 8505
4. Endeavour Energy v CEPU [2012] FWA 1809
5. Ibid, at [14] (Hamburger SDP)
About the author
Greg Harrison is a consultant with People + Culture Strategies. email [email protected]. Margaret Chan is an associate with People + Culture Strategies. email [email protected].