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.
Prior to implementing a drug and alcohol policy or testing procedure, proper consultation with employees is recommended. If employees have had input into the creation of a program, it is more likely they will be willing to comply with its requirements.
A drug and alcohol policy is like any other workplace policy and the same general considerations apply in their implementation and application. Employers ought to ensure that any drug and/or alcohol policy is applied fairly and equitably across all employees including, that employees are aware and informed of the relevant details of any such policy.
Employers are advised to ensure that any testing procedures implemented are as accurate as possible in an effort to avoid implementing an ineffective system and the consequences of unfair dismissal actions.
Assuming an organisation has adopted a random testing policy, it is important to ensure it has in place non-discriminatory guidelines which set out how your business will determine who is to be tested. This may assist an employer in proceedings where an employee has claimed that he or she has been unlawfully targeted, for example on the basis on nationality, race or ethnic background.
Policies must be applied consistently so that employees know what to expect if they are in violation. Failure to do so may render a dismissal for breach unfair, despite the fact that you may have had a valid reason and complied with all procedural requirements.
Circumstances of Employment
When drafting a drug policy employers should consider whether the policy is appropriate to the workplace. The policy should go no further than is necessary to protect an employer’s legitimate business interests in ensuring the health, safety and welfare of employees.
For example, while a ‘zero tolerance’ policy may be appropriate in workplaces where dangerous equipment is being operated, it may not be considered reasonable to have such a strict policy in an office environment.
The way in which your drug and alcohol policy is drafted, implemented and applied will be critical to its successful enforcement and ultimately the protection of the health, safety and welfare of your employees in the workplace.
Please contact BlandsLaw at [email protected] to discuss this article or your employment policies and their implementation.
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