Employers beware! Drug and Alcohol testing standards in the workplace.
You would think in Australian employment there would be a zero tolerance policy towards drug and alcohol in the workplace. While this may be the case in some industries, employers have to be cautious as the Fair Work Commission has concluded that this may not always be an appropriate policy.
Surprising the legal position on issues of drug and alcohol use is not always clear cut. We are still seeing industrial disputes and unfair dismissal claims where employees and unions are challenging employer actions in tackling work-related risks of drug and alcohol. This is thought to be caused by the tension between the concept of health and safety and what is “fair” to the employee.
Can employers provide a uniform drug and alcohol policy?
This uncertainty is not a new issue. In 2012 a company tried to establish a uniform blood alcohol concentration limit of 0.02 for all staff. The union argued that such limit was unjust and unreasonable as not all employees had the same risk. They argued that office staff should be allowed to blow higher than people operating equipment as the risk to office staff injuring themselves at work was much lower. Surprisingly, the tribunal agreed stating it was:
“…unreasonable to impose an across the board level of 0.02 per cent BAC on all employees… merely because some employees are engaged in high-risk activities where such a level is justified… There is simply no need for a “one size fits all” approach”.
However, this position is shifting as the Fair Work Commission emphasises safety in the workplace. For Coles supermarkets, a uniform policy was endorsed because they has mechanisms for personal reporting and help services for employees who were struggling with alcohol or drug addiction issues.
While the matter is still based on the circumstances of the employment, speaking to our team of employment lawyers may provide you the guidance you need to put the most effective policies into place.
What kind of tests are appropriate?
If your workplace has a policy against drug and alcohol use, the next question becomes: “What kind of testing is appropriate?”
While most workplaces have a discretion as to how they conduct drug and alcohol testing, caution should be taken when selecting the most appropriate means of doing so.
Recently the Fair Work Commission awarded substantial compensation to an employee who was found to have been unfairly dismissed because he protested against a blood test for drug and alcohol testing. Strictly speaking, the employer’s policy did not specify what kind of testing could occur so a blood test was requested. When the employee offered to undertake a urine drug analysis, this was refused.
When reviewed by the Commissioner, it was decided a urine drug analysis was perfectly reasonable and less invasive as there was no evidence to suggest that this test would not be sufficient.
In the absence of an express provision allowing a more invasive test such as a blood test to occur, it is likely that a urine analysis will be a reasonable request.
When is dismissal for an accident appropriate?
If an employee is driving and has drugs or alcohol above the workplace standard in their system they may be dismissed. This is the case even if they did not cause the accident.
In Albert v Alice Springs Town Council  FWC 73 it was held that despite the fact that Albert did not cause the accident he was able to be dismissed for having drugs/alcohol in his system. The Council found:
“…what is relevant is that he was driving while under the influence of a drug… I am satisfied that the…Council was entitled to consider the circumstances as an extremely serious breach.”
This has also been the case where the drug was taken for medicinal purposes.
Where to from here?
As an employer it is vital to be aware of the rights of employees however you should not let the uncertain standpoint in the laws deter you from taking a firm stance on the risks of drug and alcohol in the workplace.
By having clear policies, support systems in place and education for staff, it is better to be safe than sorry. Preserving workplace safety should be a main priority and should guide any policy you decide to adopt.
If you are unsure on whether your policies are appropriate, or wish to create some new ones, speak to one of our employment lawyers for advice on how you can keep your workplace safe.
About the author:
This article has been authored by Steven Brown who is a Perth lawyer and director at Lynn & Brown Lawyers. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.