Drug and alcohol policy vital to safe work environment
A worker who blamed his positive drug test on “an adrenaline rush” from watching a fire at his worksite has failed to win his job back.
The Fair Work Commission rejected his unfair dismissal case and said the employer, who had an adequate drug and alcohol policy in place, had every right to sack him after using marijuana.
CCIQ senior employer assistance advisor Damian di Santo (left) said drug or alcohol impairment is an important safety issue in the workplace, particularly in certain high-risk industries.
As an employer, you have a duty under health and safety legislation to ensure that employees do not endanger their own or others’ safety at work through the effects of alcohol or illicit drugs.
You must control drug and alcohol impairment in your workplace to ensure compliance with health and safety laws.
To do this, you can:
• implement a drug and alcohol policy; and
• implement drug and alcohol testing.
As an employer, you should develop and implement policies about drugs and alcohol and require your employees to observe those policies.
Many drug and alcohol policies provide for compulsory or random drug and alcohol testing, i.e. compulsory testing when there is an incident, and random testing in other cases. It can be a useful way to reduce the health and safety risks caused by drug and alcohol misuse.
You are entitled to implement a program of random and targeted drug testing provided the testing is a reasonable and legitimate response to a risk to safety posed by employee drug use. This is even if the program involves some interference with employee privacy.
Before implementing drug and alcohol testing in your workplace, consider the nature of the work being performed. You need to have a clear justification for drug and alcohol testing on the grounds of safety.
When implementing drug and alcohol testing in your workplace, you will need to:
• decide which method to use, e.g. urine, saliva, blood or breath testing;
• decide whether to test on-site at your workplace or off-site, e.g. in a laboratory;
• protect your employees’ privacy;
• consider how you will handle employee consent and disputes; and
• develop a testing clause to include in your drug and alcohol policy.
• Consult with employees, unions and health and safety representatives (HSRs). This will likely increase compliance with the policy.
• Educate employees on the health effects of drugs and alcohol. Your policy should focus on prevention, not punishment.
• Train supervisors, managers and HSRs on how to:
identify signs of intoxication;
approach intoxicated employees; and
monitor compliance with the policy.
• Advise your employees of the policy and ensure that they understand it.
• Apply the policy consistently and fairly.
• Reinforce the policy with timely reminders to ensure it stays front-of-mind, e.g. before a work Christmas party.
Consider these things when implementing drug and alcohol testing.
Should your policy be zero tolerance?
What you need to include in your drug and alcohol policy will depend on whether your workplace is low risk, e.g. an office, or high risk, e.g. a factory where heavy machinery is operated.
If your workplace is high risk, you are entitled to adopt a ‘zero tolerance’ drug policy. Generally, if there is not a significant operational reason for adopting a zero tolerance drug policy, it will be difficult to justify the intrusion into employee privacy posed by the associated drug testing.
Obligation to cooperate with testing procedure
Health and safety legislation imposes a duty on employees to take practical steps to minimise safety risks to themselves and others in the workplace, including members of the public. This duty extends to cooperating with you and taking your efforts to implement a drug and alcohol policy seriously.
In Carter v Bis Industries Limited (2013), an employee was dismissed for failing a drug test following a fire in the workplace. The employer maintained a drug and alcohol policy. The employee had smoked a marijuana cigarette 24 hours earlier but was not impaired. The employee argued the adrenaline surge he experienced as a result of the fire caused the positive drug test. The employee also argued he could not recall being trained about the drug and alcohol policy.
The FWC rejected these arguments and found the dismissal was not unfair. The FWC determined the employee had attended the policy training in June 2012 and his failure to recall the training was because of his attitude towards training generally – he seemed to consider it an annoyance. The employee’s failure to properly appreciate his responsibilities regarding safety despite performing hazardous work outweighed the fact of his long period of service (which would ordinarily be a factor pointing towards unfairness in dismissal).
The FWC also dismissed the argument that the testing was inaccurate because of adrenaline surge. The FWC noted the employee had been subject to a saliva test rather than a blood test, so the test results would not have revealed the effects of adrenaline.
The importance of a sound drug and alcohol policy and procedure in your workplace cannot be understated. If you require assistance in developing a robust drug and alcohol policy please contact CCIQ’s Employer Assistance team who can assist.
Phone us on 1300 731 988 or email firstname.lastname@example.org
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