Booze and drugs: What are the boss’s rights?

Is workplace drug and alcohol testing an employer’s right, or an invasion of your staff’s privacy? ANDREW DOUGLAS

By Andrew Douglas

This story first appeared 4 November 2008

Is workplace drug and alcohol testing an employer’s right, or an invasion of your staff’s privacy?

An HR manager approached me recently following difficulties with his business’s drug and alcohol policy. He was confused about what he could and couldn’t do.

Illegal drug and alcohol use are an increasing phenomena in Australian workplaces. The use of drugs and alcohol by employees creates obvious hazards, to themselves and to others. It also causes lost production, reduced quality and a broken work culture.

So what can you do? Can you test employees for drugs and alcohol?

Employee habits outside of work hours are their own choice. Testing regimes should be directed at detecting the employee’s fitness for work during work hours.

Testing of employees needs to be contractually agreed to by the employee. The use of a policy without the employee’s consent causes problems in enforcing compliance. An illegal drug and alcohol testing clause can be included in the employee contract.

Certain methods of testing offend privacy principles and do not properly reflect impairment at the time the employee attends work.

Any policy should not require zero tolerance unless it is reasonable to require it. If so, what is the test you use?

A recent case in the Australian Industrial Relations Commission has suggested urine testing to be invasive and unhelpful, because:

• It detects drugs taken in the past few days, does not adequately evaluate impairment at the time of testing, and does not indicate when the drugs were taken.
• Urine testing does not adequately indicate the level of impairment or fitness for work, only that the employee took drugs at some time.

The case went on to say oral fluid testing was a less invasive process and detected drug use in the previous few hours, a more appropriate measure of impairment at work.

The “Australian standards” are a set of documents which reflect progress in science, technology and systems. Australian standard 4670 (AS4670) is a recognised way for detecting the presence of drugs in oral fluids and the level of drug that is accepted to be threshold. AS4670 sets out details for the collection, testing and storage of specimen. The problems for AS4670 are:

• There is a lack of laboratories accredited with the standard.
• It does not provide threshold levels for benzodiazepines (such as sleeping tablets, anti-depressants and other relaxants). These levels need to be determined by the employer.
• Once accreditation occurs, oral fluid testing in line with AS4670 will be the most appropriate and least invasive method of testing.

For alcohol testing there is a range of comparatively cheap breath test machines. These need to be recalibrated regularly.

What does affected and under the influence mean?

A positive drug or alcohol test does not necessarily mean the employee is affected by drugs or under the influence of alcohol to the extent they are not fit for work:

• The test only detects the presence of drugs or alcohol in the system.
• The amount of drug or alcohol detected may not affect the employee’s ability to carry out work safely.

Zero tolerance levels in some areas of the workplace may result in the overturning of the dismissal of an employee by a court or commission because the employee was able to safely carry out work.

Affected by drugs means where the employee has a level of drug in their system above a threshold level that would make them unable to work safely or carry out their duties. The mere presence of a drug does not mean an employee is impaired.

Similarly, the presence of alcohol does not mean someone is unable to safely carry out their duties. “Under the influence of alcohol” in most workplaces means where an employee has a blood alcohol content level above a reasonable threshold level. This will be zero for those operating heavy machinery or employed as drivers.

You need to be careful to state what test you will apply – words like “affected” and “under the influence” do little to assist employees or courts/commissions dealing with disputes.

What discipline can you mete out?

Positive tests may result in a number of consequences for employees. The employee may be offered counselling, education, treatment programs, written warnings or dismissal.

The discipline dished out should consider circumstances such as the type and amount of drug detected, the work history of the employee, and any explanation given by the employee. The appropriate punishment will vary from case to case, so a uniform approach should be avoided.

For now, employers should include a clause for drug and alcohol testing in the employee’s contract of employment and use the AS4670 as a guide for testing.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.

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