3 January 2020 posted by Recovery Partners

Issues around drug use are never far from the headlines in Australia, and the last few weeks have been no exception. The impending changes to cannabis possession laws in the ACT are a hot topic in the media, and a proposal for mandatory drug-testing for Tasmanian MPs has also garnered a fair bit of interest. One government minister has even floated the idea of decriminalising MDMA. It’s clear that public perceptions of drugs and drug use are changing, but what does this mean for workplaces?  

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Workplace drug and alcohol policies

Employers have an obligation under Work Health and Safety laws to provide a safe working environment for staff, visitors and contractors. Employees also have an obligation to take reasonable care of their own health and safety, and that of the people around them. To facilitate compliance with regulations and protect the individuals in your work environments, a drug and alcohol policy specific to your organisation is often a logical solution.

While there are some industries and professions in which drug and alcohol use is governed by law, private employers in Australia have relative freedom to create and stipulate the conditions of their own drug and alcohol policies. This means that, even in states or territories like the ACT in which the possession of small amounts of marijuana will soon be legal, possessing the drug in a work environment in the ACT may still be in breach of an employee’s contractual agreement and employers may take disciplinary steps if this issue arises.

If your organisation doesn’t have a drug and alcohol policy or you feel your existing policy is due for revision in light of changes to drug laws, don’t delay. This is an important part of your WHS practice and having your expectations enshrined in your procedures and policies will give you recourse if this issue arises in your workplace.

Employees and drug use outside of work

The drug and alcohol policy of an employer is usually only applicable when an employee is at work. Employers can’t dictate whether employees use drugs or alcohol in their own time, but a grey area emerges when drug or alcohol use outside of work impacts that person’s ability to do their job. 

This concern becomes particularly significant when the nature of the work poses risks to others if the worker is impaired while conducting it. For example, a train driver who comes to work still feeling the effects of an early-morning marijuana joint or a heavy night of drinking could endanger hundreds of members of the public in the course of their duties, as could a construction worker tasked with operating heavy machinery on a busy CBD work site. Conversely, an admin assistant who comes to work hungover and fuzzy after a big night out may not be especially productive, but it’s unlikely they’ll present any serious risk to anyone else because of it.

Accordingly, in industries where safety is a particular concern (such as mining, logistics, construction and emergency services) employers often take extra precautions to ensure that employees are not affected by drugs or alcohol while at work.

Drug testing in the workplace

Employers who are particularly concerned about the ramifications of worker impairment may opt for drug testing in their workplaces to make sure employees aren’t affected by drugs. This can be a controversial topic. Some employees may feel that drug testing at work compromises their privacy and blurs the line between their work and personal lives. Others may feel unfairly targeted or concerned about the reliability of the tests and the results they produce.

When issues as to privacy arise, case law has shown that there must be a legitimate purpose (such as high-risk work) that outweighs the need to protect an employee’s privacy, and that the particular method used to do the testing is reasonable in all of the circumstances.

Take, for instance, a decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075, in which the Full Bench upheld an employer’s proposed drug testing regime which involved randomly utilising either saliva or urine testing. Despite the CFMEU’s argument that urine testing was an “illegitimate interference” with the privacy of an employee (as it could identify an employee’s historical drug use), the Full Bench found that the purpose of the regime was deterrence and the use of both testing methods reinforced that purpose. It considered that the policy was aimed at fulfilling the employer’s WHS obligations in a high-risk workplace and that the employer intended to adopt a “case management” approach to positive test results having regard to the particular circumstances of each individual.

In another decision of the Fair Work Commission (Moore v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology [2016] FWC 5910), an employer was found to have unfairly dismissed an employee who refused to undergo a drug test because the urine sample, which was to be collected by her manager, was not in compliance with the employer’s policy or with the Australian / New Zealand Standard. The Commission considered that “it is not best practice to take a urine drug sample from a person you work with and know and certainly not from a person you directly manage”.

An external and reputable provider can help guarantee the efficacy of the tests and accuracy of the results, and employers who choose to implement drug testing programs are usually encouraged by benefits such as:

  • enhancing safety (and reducing injuries) in work environments;
  • increasing the productivity of employees who may otherwise be compromised;
  • reducing liability costs related to substance misuse or abuse; and
  • assurance that employers can make decisions about how to manage employees who breach drug and alcohol policies based on independent and impartial results.

Alcohol in the workplace

In some industries, long, boozy lunches are par for the course, and even sanctioned in the name of networking and maintaining customer relationships. Other offices may provide alcohol to employees on a Friday afternoon, or champagne to celebrate a birthday or work accomplishment. It’s worth considering that this may pose difficulties for those employees who have a problematic relationship with alcohol. Whatever the usual practices around alcohol are in your workplace, it’s important that managing the risks associated with alcohol misuse and abuse are factored into your drug and alcohol policy. Of course, the more dangerous the work being performed, the more stringent a drug and alcohol policy should be.

Ultimately, employers must try to balance their commitment to health and safety with respect for the privacy of their employees. It’s important to make sure expectations are clear and that employees are aware of their obligations under your organisation’s policy from the outset. 

If you’d like assistance to develop or update your organisations’ drug and alcohol policy or procedures, Recovery Partners can help. Get in touch by emailing admin@rrp.com.au or calling 1300 OHS RTW (647 789) today.

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Recovery Partners can also conduct onsite drug and alcohol testing at locations across Australia. Find out more here.

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Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at www.workcover.nsw.au