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Effective drug and alcohol polices cover drug testing best practice

An employee who turns up to work under the influence of drugs or alcohol creates a risk to themselves and to others that can range from minor to life-threatening.  Not only do they put themselves and their co-workers in danger, but the business itself can suffer damage to its reputation.

Employers have an obligation to maintain the health, safety and welfare of all employees. They also want to ensure their employees uphold the integrity expected of them. Implementing a drug and alcohol policy can go a long way to eliminating the hazards that drug and alcohol use have on the workplace, and best practice is that these policies should also include guidelines as to how and when drug and alcohol testing will be conducted.

In a recent case heard by the FWC[1], a Dorevitch Pathology employee was asked to undergo a drug test during a meeting, after she was accused of using heroin by an ‘anonymous source’ (later identified as her disgruntled neighbour). The employee questioned the request,

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Clearly an employee who is intoxicated at work will suffer from impaired judgement and may seriously jeopardise their own and other employees’ safety. A common question we are asked is: When can I test employees for drug and alcohol use?

This area is a tricky one for employers as there are competing interests to consider: the employer’s obligation to provide a safe workplace, versus an employee’s right to privacy.

Procedural Fairness v Safe workplace

A recent FWC decision[1] highlights the complexity of this issue. An Ensign employee was summarily dismissed after failing a random drug test, testing positive for methamphetamine, THC and amphetamine. He claims he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary procedure.

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Employers have a duty to ensure the health, safety and welfare of their employees.

This requires employers to take reasonable steps to prevent employees from suffering injuries at work. One way of fulfilling this duty is to subject employees to drug and alcohol testing and prevent those under the influence of either drugs or alcohol, from working.

It may however not always be reasonable to direct an employee to submit to a drug or alcohol test. Employers will need to be mindful of the way in which its drug and alcohol policy is implemented and applied, the method of testing, that it is anti-discriminatory in nature, that it is consistently applied and that it is appropriate to the circumstances of employment in order to avoid actions for unfair dismissal or the implementation of an ineffective policy.

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