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Drug and alcohol policies and procedures form an important part of occupational health and safety management in any business. In many cases, they will include a system of drug and alcohol testing to assist in eliminating health and safety risks in the workplace.

The need to implement a drug and alcohol policy must be balanced with the privacy rights of individual employees. The policy should only go as far as reasonably necessary to guard against health and safety risks in the workplace, and should include appropriate safeguards to ensure that the implementation of policy measures are managed effectively.

Occupational health and safety controls

Employers and employees each have statutory obligations to take practical steps to ensure that no person is exposed to health or safety hazards as a result of any activity being undertaken in a workplace. For employers, this generally means preparing and implementing a health and safety policy to eliminate potential workplace hazards.

Every employee is under a legal obligation to obey the lawful and reasonable directions of their employer insofar as they are consistent with their employment contract. Consequently, every employee must comply with any reasonable health and safety requirements imposed on them by their employer, including those relating to drugs and alcohol.

Drug and alcohol policy framework

Requirements imposed on employees relating to drugs and alcohol should form part of a coherent and consistent policy. The employment contract or enterprise agreement governing the employment should expressly provide that the employee must comply with the employer’s health and safety policy, which should be documented and provided to each employee.

Employers whose employees are involved in certain types of activity (for example, driving) are subject to regulations which contain particular drug and alcohol policy requirements. For other employers, the International Labour Organisation codes of practice may provide a useful guide.

A drug and alcohol policy should be expected to:

  • Ban the use, consumption, possession, manufacturer, sale or purchase of illegal drugs in the workplace
  • State the drug and blood alcohol content levels which will amount to a breach of the policy
  • Where applicable, set out a fair and transparent system for drug and alcohol testing including privacy safeguards
  • Identify a process for managing breaches of the policy which addresses disciplinary issues and, where appropriate, counselling and treatment for addiction
  • Identify a procedure for managing disputes in connection with the implementation of the policy
  • Provide for adequate training and education of employees in the application of the policy

Reasonableness

The drug and alcohol policy requirements imposed on employees by an employer must be proportionate to the risks to health and safety posed by intoxication of employees in the workplace. The risk of hazard must be sufficiently high, and the methods imposed by the policy sufficiently necessary, to justify the interference with the privacy of the individual employee. The policy requirements should not go further than reasonably necessary to ensure that any risk to health or safety can be eliminated, although the precise methods of best managing safety risks in each individual workplace can be determined by the employer. The question is determined, in each case, in light of all the relevant circumstances.

In some industries (for example where employees are involved in the control of potentially dangerous machinery) a proportionate response will be zero tolerance and a strict, mandatory testing regime.

Employers must put in place appropriate privacy safeguards, particularly in relation to any mandatory testing regime. Particular care needs to be taken to ensure that the drug and alcohol policy does not impose requirements on the behaviour of employees which do not affect the performance of their workplace duties, including those relating to health and safety. For example, an employer may not generally forbid an employee from consuming alcohol outside of work, although they may forbid them from attending work with any blood alcohol content.

Testing method

An employer may select the method of testing for drugs and alcohol which is likely to be most effective in managing the particular risk which the testing regime is intended to eliminate. Determining the appropriate method involves a consideration of the activities being conducted by particular employees in the individual workplace concerned. In cases where habitual drug or alcohol use by employees, even outside of working hours, may result in a significant risk to health and safety, then an employer may be justified in imposing a random urine testing regime to guard against chronic drug and alcohol problems. In other circumstances, oral testing may be more appropriate to test for acute intoxication. Alternatively, a combination of methods may be appropriate.

A refusal by an employee to undergo drug and alcohol testing in accordance with an employer’s policy which they are contractually obliged to follow may constitute conduct justifying dismissal.

Managing policy implementation, breaches and disputes

Where a drug and alcohol policy involves specific prohibition and testing measures, its implementation should be supported by appropriate training and education, to ensure that employees understand their legal rights and obligations, and the relevant health and safety risks.

A drug and alcohol policy must include procedures for managing the consequences of workplace intoxication. For circumstances concerning minor infringements, the appropriate methods of managing the situation would be likely to involve informal discussions, formal warnings for repeat offenders and, where appropriate, counselling. For persons found to be affected by a drug or alcohol addiction, counselling and treatment would be likely necessities, and the affected employee should be given leave to address the problem, in accordance with the employer’s leave policy.

Employees who are so impaired by drugs or alcohol at work that they present a risk to the health or safety of any person, or are unfit to be trusted with the performance of their workplace duties, will have engaged in serious misconduct justifying summary dismissal.

A workplace drug and alcohol policy should also provide that disputes arising out of its application are covered by the grievance and dispute procedures applying to the employment generally (including those contained in any relevant contract or enterprise agreement). The employer must ensure that fresh policies are not introduced without proper consultation taking place and the applicable terms of any relevant employment agreement being renegotiated.

Summary

The primary goal of a workplace drug and alcohol policy should be to eliminate risks to health and safety. In formulating and implementing the policy, employers may adopt measures which are likely to be most effective in eliminating those risks, including mandatory testing, provided they are reasonable.

Prohibition and testing regimes should be part of a balanced policy which also includes provision for health and safety training and education of employees, privacy safeguards, availability of counselling, and provision for the treatment of drug and alcohol addiction.

If you require assistance with developing workplace policy and plans for their implementation, please contact us at Lynn and Brown Lawyers on 9375 3411.

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