Leigh: Hello, and welcome to the Better Business Podcast Essentials Update. I’m your host, Leigh Johnston, and in these mini episodes, we tackle a key issue in the world of workplace relations. This month we’re looking at drug and alcohol testing, specifically how an employer or a small business owner should go about drug testing and alcohol testing their employees.
Leigh: There are certain industries where drug and alcohol testing is required. Other businesses just want to adopt a zero tolerance approach. But what are the rights of employees when it comes to drug and alcohol testing, and what are the responsibilities of employers? Joining the show is employment relations expert, Thorunn Arnadottir, who’s going to talk us through how employers can legally request and conduct drug and alcohol testing in the workplace.
Leigh: Thorunn, it’s always a pleasure to have you on. Welcome to the show.
Thorunn: Thanks, Leigh. It’s great to be back.
Leigh: Let’s jump in. In what circumstances is it okay for an employer to ask an employee to submit to a drug or alcohol test?
Thorunn: Well, employers have a right to try and eliminate the risk that employees might come to work impaired by alcohol or drugs, such that it could pose a risk to their own health and safety, or the health and safety of others. It’s an accepted principle by industrial courts and tribunals that drug and alcohol testing can be an intrusion on the privacy of an individual, however it can be justified on health and safety grounds. The courts recognize that drugs or alcohol can impact on an employee’s capacity to carry out their duties safely, and while testing can infringe on one’s privacy, avoiding it can otherwise undermine the high standard of safety the nation upholds.
Thorunn: In fact, employers have an obligation to provide a safe workplace. This involves identifying and managing health and safety risks by eliminating them, or minimizing them so far as reasonably practicable where they cannot be eliminated. And on the other hand, employees have an obligation to take reasonable care of their own health and safety, and ensure that their actions don’t jeopardize the health and safety of others, too, and to do this involves making sure they are fit to work.
Thorunn: While testing can be carried out on this basis, testing can be a sensitive and controversial matter, and so employers do need to consider whether it’s actually relevant and necessary in their workplace, and also think about safeguarding against legal issues that might arise if it’s not carried out correctly, so they might need to establish a comprehensive drug and alcohol program.
Leigh: Okay, so there’s a lot there for employers and small business owners to think about. Can you tell us specifically what legal parameters they must be aware of?
Thorunn: Well, this is an area that requires careful consideration and action because we are talking about testing that can result in an employee losing their job. This can be a severe impact to their livelihood, and an impact on society as well because we’re one less person that’s in the workforce. So there’s often a strict threshold for establishing if an employee should be terminated for being impaired, posing a health and safety threat, or breaching company policies.
Thorunn: Legal issues can arise if an employer takes action against an employee for testing that hasn’t been backed by strong evidence, there’s no policy in place, employees are treated unfairly or are targeted without reasonable cause, such as through random testing, they aren’t provided procedural fairness, or the testing process or outcome is found to be in breach of the existing company policies.
Thorunn: Without a proper process, testing can lead to a successful general protections claim, unfair dismissal claims, or even the reinstatement of employees. It can further lead to privacy issues where there’s no policy in place, or there’s no reasonable cause for carrying out drug and alcohol testing. Further issues can also arise where the process following positive testing is inconsistent with the processes set out in a registered enterprise agreement, which is, in effect, a breach of a legally enforceable instrument.
Leigh: Can they make regular drug or alcohol testing a standard part of their business practice?
Thorunn: Drug and alcohol testing is already standard in a number of industries involving the operation of heavy machinery, equipment, or vehicles, for example in the manufacturing industry, road transport, and construction industries. In fact, legislation in these areas generally prohibit the use of drugs and alcohol due to the high risk of injury to not only workers but the public, too. We do also see businesses with less risk adopting regular drug and alcohol testing, too, however there can be risks with doing so.
Thorunn: The method of testing and how this is carried out needs to be considered. If an employer is thinking of carrying out testing in-house, the procedures need to comply with all relevant Australian standards, and the personnel carrying out the testing need to be adequately trained to do so. In fact, it’s best that this is carried out by an accredited lab, because any non-negative evidence collected on-site needs to be substantiated and substantially the same as evidence collected by an accredited lab anyway, and this is before the evidence can be used to take any action against an employee.
Thorunn: The method should also be considered. Some methods test for impairment, while others test for traces in the system. Employers can run into issues when seeking to terminate an employee who might have traces of drugs in their system, however they’re not actually impaired and they don’t cause a threat to health and safety of others or themselves due to the nature of their work.
Thorunn: The rationale and the validity of testing should also be considered. Employers who do seek to make it a standard process should be ensuring that the process and the steps taken following a non-negative result don’t expose them to a legal risk. This can effectively be achieved by establishing a policy that clearly outlines the rationale for testing, the situations for when testing may occur, and the processes involved with testing, as well as the potential consequences for returning a positive result. Also, maybe include something about counseling and support measures, particularly for those that are suffering from a dependency on drugs or alcohol.
Thorunn: Employees should also be educated on what is expected of them, including their responsibility to report to management if they are on medication that could be impacting their capacity to carry out their work safely. Employers should also be trained on the potential legal risks involved with how they carry out testing, and make sure that they aren’t deviating away from the company policy.
Leigh: Okay, so what can an employer do if an employee refuses the drug or alcohol test, assuming that they’ve followed all of the standard legal procedures that you’ve just mentioned?
Thorunn: If a company policy is in place, which reasonably requires employees to comply with a lawful screening process, refusal can be taken as a breach of lawful and reasonable management instruction and can subject an employee to disciplinary action. However, the reasonableness of the request to participate in drug or alcohol screening will come down to the nature of the work or industry, whether there’s a policy in place and the employer has followed their own policy, whether the employee was informed about the policy and the procedures, whether there was fair treatment of the employees, and if the employee had any concerns about the request, such as the method or the process, whether they raised their concerns through the correct channels.
Leigh: Okay, so let’s say that an employer has met all of their legal obligations, they’re meeting these Australian standards, they’re okay to proceed with a drug and alcohol test in their workplace. What happens if the employee returns a positive result? What action can the employer take?
Thorunn: In the event of a positive test result, the worker concerned should be removed from the workplace or encouraged to remain in a safe location in the workplace until it’s safe for the person to resume work or travel home. They might be provided with counseling and assistance, as agreed and outlined in the policy, or they might be provided with further education and awareness training, also in accordance with the policy, and they might even be subjected to disciplinary action, as per the policy, remembering that any disciplinary action should be supported by solid evidence. Retesting may be required, using the same method as the initial test, and conducted by a quality assured individual or organization, in accordance with the relevant Australian standards.
Leigh: What about an employer who doesn’t have drug or alcohol testing as part of their current practice, but wants to introduce it? How should they start?
Thorunn: I would recommend seeking assistance from a professional to ensure that they are going about it the right way. This is important from the onset of the process, to the execution of testing, and taking follow up action against the employee. As mentioned earlier, there can be a number of legal hurdles to overcome, and one small matter overlooked can throw a strong case out.
Leigh: Okay, so there really is a lot for small business owners and employers to think about when wanting to introduce a drug or alcohol testing policy or procedure into their workplace. What other considerations must they be aware of when it comes to this kind of process?
Thorunn: Well, for one, a company would need to consider the financial costs for the company involved with directing an employee to undergo further medical testing associated with the policy. Companies should also carefully consider who will carry out the testing. Physical testing shouldn’t be carried out by a direct supervisor or manager because this can appear to prejudice the outcome, regardless of the nature of the workplace, and where external testing is performed, an accredited lab is the best option for an employer.
Thorunn: Implementing a drug and alcohol policy should also be consistent across employees because it can be seen to be targeting individuals if there’s an inconsistency involved. Also remember that just because an employee returns a positive outcome, doesn’t mean that they can be dismissed on the spot. Procedural fairness through disciplinary process may still be required to establish grounds for terminating. Skipping this can lead to successful claims for compensation or even reinstatement.
Leigh: Thorunn, it’s a really tough one for small business owners. Thank you so much for sharing-
Thorunn: It certainly is.
Leigh: Well, thank you so much for sharing your expertise and insight on this issue.
Thorunn: No problem at all. Thanks, Leigh.
Leigh:Well, that’s it for this month’s episode of the Better Business Podcast Essentials Update. A huge thanks to Thorunn for joining the show and talking us through one of the most complex issues in workplace relations. If you have any follow up questions about drug and alcohol testing in your workplace, or you have a burning workplace relations issue in your business and need advice, give Employsure a call on 1300 651 415 to speak to one of our specialists, or you can visit our website, employsure.com.au, for a stack of free information and resources. That’s all we have time for. Thanks again for listening. I’m your host, Leigh Johnston, and tune in again next time when we tackle another big issue in workplace relations.