With a few busy months ahead for many businesses holding work social functions and Christmas parties, it is a good time to consider the issues around drugs and alcohol in the workplace. From a legal risk management perspective, best business practice around these issues involves the implementation of workplace policies that cover not only drugs and alcohol, but also performance management, occupational health and safety, discrimination and termination. It may be useful at this time of year to remind employees what policies are in place and when these apply.
Behaviour outside of the workplace
Social media is increasingly blurring the distinction between work and home, or public and private. Social networking sites such as Facebook potentially allow employers much greater access to information about employees and what they may or may not be doing outside of work hours. This information may include for example photos of drunken or reckless behaviour outside of work. Even if you have viewed multiple photos of employees partying and drinking alcohol on their Facebook pages, the fact is that unless this is affecting their work, what employees do out of work hours is largely their business. From the perspective of employers the key question to ask here, regardless of what you think of the behaviour, is whether it impacts on the employee’s work.
If you suspect an employee has been, or is, affected by drugs and/ or alcohol it is important (assuming their behaviour does not amount to serious misconduct) to treat this as a performance management issue and manage it in that way:
- Employees should be given a warning.
- Any meetings should include the offer of a support person and a right of reply
- The process should clearly identify what the performance issue is, what targets the employee needs to be meeting, and what courses of action will be taken.
Ensuring that potential drug and alcohol issues are treated in the same way as any other under-performance issue is treated, helps to minimise the potential for discrimination. That said, where the behaviour poses a risk of injury to the employee or others in the workplace, the issue must be treated more seriously and may fall under the guise of serious misconduct.
Any behaviour that amounts to serious misconduct will require a different approach and may justify immediate termination of employment.
Whether or not it is reasonable to implement drug testing depends on the particular industry and the actual job or work involved. For example, if employees are working with heavy machinery or vehicles and impairment presents an occupational health and safety issue, drug testing may be justified as a risk management procedure and one that is defensible on the facts. However, the testing procedures should be as minimally invasive as possible and target the drug levels present at that time (as opposed to detecting previous or earlier drug use which may not affect work).
We have previously written about Fair Work Australia cases which have involved employee drug testing – click here
While employees are free to do as they choose in their private time, their behaviour at work social functions or Christmas parties (which includes alcohol consumption for example) is subject to these policies and must meet certain standards. These policies should take into account any relevant legislation and applicable awards, be kept regularly up to date and be clear and easily understood by all employees. Policies should cross reference other applicable policies and be incorporated into regular workplace training.
Good workplace policies offer many benefits to employers in businesses of all sizes. These policies, if well communicated and explained to employees, may help prevent problems occurring in the first place. They also allow employers to set appropriate guidelines, and employees to understand what is expected of them while at work.
Obviously not all problems can be prevented and for many reasons issues may arise. If they do, then as long as policies are in place, there is a clear set of procedures which all parties may follow.