There is no more vexed issue in the workplace than alcohol and drug testing. Employers are entitled to be concerned about the sobriety of their employees whilst, at the same time, employees are entitled to maintain and protect their privacy.
Whilst, as a rule, drug and alcohol testing in Australia has not been as common as in the United States, this is beginning to change. This is because Australian businesses have now identified and quantified the damage that is caused to various levels of business productivity by drug and alcohol use in the workplace. Lost productivity, absenteeism, injury to property and person, damage to machinery, decreased morale and insurance issues amount to an estimated $6.2 billion loss of productivity each year in Australia.
Up until relatively recently, drug and alcohol testing was more common in industries where mental or physical impairment due to alcohol or substance use would present serious safety concerns. These industries often involved the use or operation of equipment or machinery that, used inappropriately, could endanger the safety of both the operator and other employees. Indeed, industries such as the railways have had drug and alcohol testing enshrined in legislation in some states for about fifteen years. The Rail Safety Act (NSW) prescribes a regime of blood and urine testing for drugs and alcohol for employees involved in rail safety operations in the New South Wales rail network.
As a general rule, there are a number of legal impediments to drug testing in the workplace. These include privacy, consent, relevance to the position, consequences of a failed test and relationships with unions and other employee representatives.
However, the main legal consideration for the workplace is occupational health and safety. If an employer fails to take appropriate action when an employee is adversely affected by drugs or alcohol the employer is likely to be in breach of its legal obligation to provide a safe workplace, free of all of the reasonably foreseeable risks that arise from time to time.
To ensure a safe and secure workplace, an employer might want to undertake drug testing of its employees at the time of hiring, following an incident in the workplace (in the same way that police breathalyse car drivers immediately after an accident), or when they have formed a suspicion that an employee might well be under the influence of drugs or alcohol. An employer might also wish to reserve the right to undertake testing at random times.
From an employer’s point of view, a testing regime provides a twofold benefit of proving drug or alcohol use on the one hand, and deterring future use of drugs and alcohol on the other. Of course, the proof element is particularly critical – even if an employee is apparently intoxicated or adversely affected by drugs, it cannot be conclusively proven unless a test positively confirms that this is the case.
Once employers are satisfied that it is appropriate for them to have a regime of drug testing within their workplace, it is appropriate for them to develop a specific policy detailing the framework for that testing.
The first issue to be enshrined into the policy is the method of testing to be used. Various options are available and all can (and ought) to be administered by external professional organizations. Testing of blood and urine are the most common testing mechanisms.
Blood testing often detects very recent drug or alcohol use, whilst urine analysis detects drug and alcohol use for a longer period of time. It is relatively easy to administer and usually provides very accurate results.
Hair tests are also an accurate, yet far less common, method of testing. In fact, because traces of drug and alcohol use can remain in a person’s hair for a long period of time after use, hair testing can be the most reliable method of testing for alcohol and drugs beyond a two week period or so. However, because of the rather prohibitive cost of the technology needed to undertake hair tests, this method is not often used in the workplace.
Saliva and breath tests are used, but more often than not, they screen the use of alcohol rather than drugs. It is, however, the most unobtrusive and least expensive of all testing methods.
Once an employer has determined that it is an appropriate part of the workplace drugs and alcohol policy that testing be undertaken at certain times, all elements of that policy need to be adhered to. If a policy is formulated but not then followed, the employer’s legal obligation to provide a safe workplace will have been breached as the employer has, by formulating the policy, identified a risk which it has then failed to remove.
Privacy is a crucial issue for employees in respect to drug and alcohol testing. Not only is the actual test itself an invasion of the employee’s privacy (by the mere fact of the insertion of the needle or the production of a urine sample) but the method of collating, storing and reporting test results touches on significant privacy issues. These elements of the testing process are likely to be categorized as health information and, therefore, very sensitive.
The National Privacy Principles require that the collection of personal information be necessary when comparing the risk to the degree of invasiveness undertaken by the testing itself. This principle ought to be satisfied in workplace situations given the employer’s obligation to create and maintain a safe workplace environment. However, it will not relieve the employer of its important duty to retain and protect employees’ privacy at each stage of the testing process.
Once a test positively shows that an employee is under the influence of drugs or alcohol, the process should move quickly from the testing stage to the disciplinary stage. Employees must be fully aware of the consequences of a positive test and the employer must not be arbitrary or capricious in the handing out of disciplinary action. In order for the testing and punishment processes to be legally binding, the discipline ought to be prescribed in advance – that is, that all employees must be aware of what a positive test means to them and their position within the organization before the test is undertaken.
In addition, the possibility of an employee refusing to undergo a test must be considered. The employer should assess whether a refused test equates to a failed test. In so far as drink driving laws are concerned, this is most certainly the case. The penalty that applies to a motorist who refuses to submit to a breath test is the same as if the result of the test was that the blood alcohol content was at the highest recordable level. At law, an employer will have no right to force an employee to undertake a test if the employee refuses to do so.
To try to bring some legal weight to the situation, an employer might wish to make compulsory testing a condition of employment. The most obvious way to do this would be to incorporate the testing policy into the contract of employment. If the contract is assessed by the relevant workplace relations overseer (which at the time of writing is The Workplace Authority) as fair to both parties, then the employer will have the right to enforce the disciplinary mechanisms set out in the policy in the event that the employee refuses to undertake a test, or if a failure of the test occurs.
Employers also need to be wary of the fact that testing methods detect an employee’s exposure to drugs, often in the days (and sometimes, weeks) prior to the tests. Consequently, an employee who has used or come into contact with drugs in the days or weeks before testing might return a positive test notwithstanding that it has been some period of time since that use or exposure. This means that although an employee has tested positive to traces of a prohibited drug, he or she might not be impaired by that drug in any way due to it having entered the system some considerable time prior to the test. A drug such as cannabis is detectable in the system up to six weeks after use. Testing ought to, therefore, be more properly geared towards detecting the impairment of employees rather that detecting their use of or exposure to a particular drug. In any event, an employee might be within his legal rights to argue that his activities outside of work (whether legal or illegal in nature) should not in any way affect his employment situation unless those outside activities prevent him from properly undertaking his role at work. If testing determines only exposure rather than impairment, the employee’s argument is a reasonable one. As a minimum, the employer’s policy ought to prescribe that testing will be compulsory where a reasonable suspicion of impairment is held.
With all of these issues in mind, it is clear that if a company is thinking of testing its employees for drug and alcohol use or impairment, it must first establish a specific testing policy. Ideally, that policy would be formulated in consultation with the employees (or their representative organization) with a view towards an accepted and collaborative policy, rather than one imposed ‘from on high’. The policy would have as its essential elements information about testing procedures (including where, when, how and by whom testing will be undertaken), privacy information (such as where samples will be tested and stored and for how long) and consequences of a refused or failed test (including suspension or dismissal of employment or pecuniary penalties).
The policy ought to be formulated and agreed to before any testing begins. It ought to be documented in detail and circulated to all current and future employees. Ideally, it will form part of new employment contracts for all incoming employees and for existing employees entering now contracts of employment.
The policy should also detail a range of pre-detection procedures to enable susceptible employees to avail themselves of support and counselling services prior to drugs and alcohol becoming an issue in their lives and, therefore, in the workplace.
Cases decided by the Australian Industrial Relations Commission (AIRC) on the question of workplace drug and alcohol testing seem to be more inclined to uphold the legality of a testing regime where it is part of an overall drug and alcohol policy, and where the risk of affected or impaired workers represented a real danger to themselves and the workplace as a whole. The testing policies that have been approved by the AIRC have been determined to have been reasonable in the context of the objectives of the policy on the one hand, and the rights of employees to privacy and fairness on the other.
Employers have an obligation to provide a safe workplace and where workers are influenced by drugs or alcohol they face a risk to safety. Employers may wish to incorporate drug and alcohol testing into an overall plan to promote and maintain safety within the workplace. They will be legally entitled to do this so long as the benefits to safety outweigh all of the disadvantages that come from testing.