Drug Testing in the Workplace – FWA Full Bench Declares HOW it Can be Done

Recent Fair Work Australia determinations have reiterated that even compulsory testing is a reasonable employer instruction in response to the risks to employee safety posed by drug and alcohol use. However the tribunal has taken a balanced approach in upholding a FWA decision which prohibited urine testing on employees on the basis that it was “unjust and unreasonable”. The tribunal stated that urine testing would potentially detect drugs taken days earlier or over a weekend and this would not be a reasonable indicator of whether the employee was unfit for work on the day of testing.

This is the second occasion on which FWA has ruled in favour of saliva testing and Unions have appealed to the government not to appeal to the Federal Court.

Cases testing the legality of testing in the workplace have tended to focus on the competing objectives of maintaining safety while protecting privacy. Debate focuses on effectiveness of technology (i.e. the type of test used and the substances to be identified) in terms of providing the information required to maintain a safe and healthy workplace. This means that the testing “window” should, as much as possible, be limited to a determination of impairment that would have an effect in the immediate work environment rather than outside it, as well as the invasiveness of the testing procedure and the privacy of the employee.

More recent FWA determinations on this issue have highlighted that new testing technologies may provide for the accuracy and testing “window” which is appropriate for the purposes of the employer, without the need for a more invasive testing procedure. This means that more invasive methods of testing – such as urine sampling – may become harder to defend as being reasonable. In my view it is highly unlikely that blood testing, if challenged, would be upheld as being reasonable.

In any event employers should be aware that it may not always be reasonable to direct an employee to submit to a drug or alcohol test. If the decision is taken to implement mandatory drug testing the employer should be mindful of the way in which this is implemented and applied and in particular:

1. Consider the method of testing;
2. Ensure that the testing is anti-discriminatory in nature (that is that it does not target an individual or group of individuals);
3. Ensure that it is consistently applied; and
4. Ensure that it is appropriate to the circumstances of employment (in order to avoid actions for unfair dismissal or the implementation of an ineffective policy)- for example compare the reasonableness of testing a clerical worker as opposed to a person in charge of heavy or dangerous machinery.

Author:        Christine Broad, Solicitor, BlandsLaw

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This article is intended as a guide only and does not replace specific legal advice.