A recent case before the Fair Work Commission (FWC) has illustrated that employers can decrease their risk of an unfair dismissal claim by putting in place mechanisms to deal with their drug and alcohol policies. In Sheldon Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465 (26 September 2023) (austlii.edu.au) (“Platinum Blasting Services”) the commission found that correctly drafted policy and having in place the appropriate mechanisms to manage those policies, created a positive obligation on an employee to disclose their use of prescription medication even if it may not impair them at work.

Policies and Employment Contract Clauses that relate to drug use are commonplace these days. These policies do not only apply to recreational use of drugs but can extend to prescription medication that may impact an employee’s ability to perform their role. An example of a policy clause that has recently been interpreted by the FWC is quoted below (Platinum Blasting Services at [42]):

All Platinum Blasting Services employees, visitors and contractors who are required to take prescription or over the counter medication, that could impair their judgement, coordination or alertness must inform their immediate Manager/Supervisor before commencing work. Before taking any medication, either prescribed or over the counter, advice must be sought from a doctor or pharmacist.

Many employees may read this policy and form an opinion that if they are not going to be impaired by the prescription medication, then there is no obligation to report it to the employer. This interpretation of the policy would be incorrect.

The interpretation of “could impair” is important in understanding the employee’s obligations. The phrase indicates that there is a possibility of impairment rather than a measurable assessment of impairment. A phrase such as this in a policy is intended to address the possibility of impairment when using the prescribed medication regardless of whether the possibility of impairment is minimal or non-existent.

It is also important to note that even if the employee takes reasonable steps to ensure there is no impairment (this may include but is not limited to, taking their own drug tests prior to attending work to ensure they are negative for a substance, or leaving a window for any residual effects of the drug to wear off), there is still a positive obligation on the employee to notify the relevant person of their use of prescription medication.

The employer also has an obligation to provide mechanisms for dealing with the policies they put in place. Along with assuring that policies are drafted correctly, employers should also have procedures and processes in place to deal with the medical declaration process. These processes may include getting disclosures from employees, seeking advice from treating doctors and putting in place a Medical Management Plan that deals with any associated risks that may come with the prescription medication use.

Further, it is important to put in place plans in the event that any medical evidence associated with the prescription drug use cannot be verified (e.g. suspension until verification can occur). An employer has the right to question medical evidence or medical prescriptions provided by an employee, this is particularly the case in ‘safety critical’ roles.

 Lessons for Employers

• Employers should have specific policies in place that give the employer the ability to terminate based on an unacceptable risk resulting from the taking of prescription medication.
• Employers should have a documented process in place, dealing with the investigation of whether taking the prescription medication poses a unacceptable risk to the business and/or other employees.
• The process for assessing risk should include gathering of medical evidence and putting in place a Medical Management Plan that sets out obligations of the employee should the circumstances, or impact of the prescription medication change. These plans should be created in consultation with the treating doctor and require regular check-ups.
• Where employees perform ‘safety critical’ roles, the requirements of a Medical Management Plan might be more onerous.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077