Will your drug and alcohol policy stand up in court?

In a recent FWC case, a global drilling and energy services provider immediately terminated one of its employees after he tested positive in a random drug test for methamphetamine, tetrahydrocannabinol and amphetamine. The employee claimed he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary process. FWC agreed that the dismissal lacked procedural fairness; however, this was mitigated and overridden by the employer’s obligation to ensure a safe workplace. (Hafer v Ensign Australia Pty Ltd [2016] FWC 990)

Although the employee was not successful in this case, the nature and risk profile of the workplace was critical to the decision. The decision may have been different if the employer did not follow correct procedure in a lower-risk workplace.

The challenge

The annual cost of alcohol and illicit drug misuse to Australian Society is estimated at $23.7 billion (Collins and Lapsley) with the Australian Drug Foundation reporting that drugs and alcohol in the workplace cost business approximately $6 billion annually through hidden costs, lost productivity and absenteeism. In addition to this cost to business, workers who are impaired by alcohol and/or drugs present a substantial safety risk which must be controlled to ensure compliance with the various work health and safety laws across Australia and minimise the risk of injury to workers and visitors in the workplace and others who may be impacted by the work being conducted.

Dealing with drugs and/or alcohol use in the workplace can be challenging, but as a PCBU you can’t ignore it in the hope that it will go away. You must take all reasonable steps to ensure that your workplace is free of alcohol and/or drugs. Failure to do this means that you can be held liable for any negligent, reckless or wrongful acts committed by workers who are impaired by alcohol and/or drugs.

When can you test your workers for drug and/or alcohol use?

This is a question we are often asked by clients and the answer is yes you can test your workers; however, it is not as simple as writing a policy and posting it on your intranet. You must be able to justify your reason for testing. For example, drug and alcohol testing is considered reasonable provided it is used on the grounds of workplace health and safety as a PCBU has an obligation under WHS legislation to provide a safe workplace and eliminate, and if it is not possible to eliminate, minimise so far as is reasonably practicable any risks to the health and safety at that workplace. This includes any risks associated with workers coming to work impaired by alcohol and/or drugs.

Supporting this is a series of recent decisions by the Fair Work Commission (FWC) which have recognised the legitimacy of drug and alcohol policies and procedures in removing safety risks, and the right of PCBUs to take disciplinary action for breaches of the policy.

For example, in another case an employee was dismissed for a breach of the company’s alcohol and other drugs policy (which stated that it was unacceptable for a worker to present for work, or be at work, or to carry out work with alcohol and/or drugs present in their system in contravention to levels of 0.02). The employee’s initial reading was 0.043, which dropped to 0.040 when retested 18 minutes after the initial reading. Both readings were at least double the level prescribed. The employee accepted that he was in breach of the company’s policy; however, argued that his metabolism was lower than the statistical average, an argument that was not accepted by the FWC who ruled that the employee’s breach of the company policy was a valid reason to terminate his employment. (Bennett V Viterra Operations Pty Ltd (2017) FWC 1 February 2017)

There are, however, several steps that you must take to ensure that your drug and alcohol policies and procedures are effectively managing safety risks and are defensible if you are required to act on them.

Testing for any other reason other than on health and safety grounds could be considered unreasonable and individuals may argue it is an intrusion onto their personal lives, a view that has been supported by various industrial tribunals who have generally determined that testing is an intrusion on an individual’s privacy, which can only be justified on health and safety grounds.

How do I implement a drug and alcohol program in the workplace?

Before implementing a drug and alcohol program into the workplace, you must have appropriate policies, procedures and support services in place.

It is important to remember that if you are implementing the program on the grounds of work health and safety you also have a legal obligation under WHS legislation to consult with workers (or their representatives) who may be impacted by the change.

How important is it to have a robust policy in place?

Having a robust company drug and alcohol or fitness for work policy (which broadens the scope of the drug and alcohol policy to also include other factors that may impact on a worker’s ability to perform their role safely, including, but not limited to, fatigue and non-work related injuries/illnesses) in place will not only demonstrate the organisation’s commitment to a safe and healthy workplace, it will clearly communicate your organisation’s position with respect to alcohol and/or drugs in the workplace.

For your policy to be effective and able to stand up if challenged in court, it must clearly define testing protocols, procedures and agreement on testing methods. It must also clearly set out the standards expected of workers, their responsibilities, what happens should a test reveal a positive result, issues around valid results, what will be the consequences of a breach of the policy including disciplinary action, counselling, rehabilitation etc and how disputes are handled. If your policy does not contain this information, the company would find it extremely difficult to defend an unfair dismissal case where the grounds for dismissal were alcohol or drug related.

The policy should also reference the type of substances which can cause impairment, such as alcohol, methamphetamines (cocaine and ecstasy), cannabis and opioids (heroin). Prescription and ‘over the counter’ medication should also be considered as part of any policy as some of these can also cause impairment. However, a policy is only one piece in the jigsaw puzzle.

When you implement a drug and alcohol policy, you must also ensure that your workers are well informed of the policy and testing procedures. In the context of an unfair dismissal case, the FWC places significant weight on the importance of a well-communicated policy along with training and ongoing education as a defence for an employer when determining an unfair dismissal claim.

What do I need to consider when implementing a drug and alcohol policy?

In order for a policy to be effective and for you to be able to enforce and defend the policy, if required, consideration should be given to the following:

• Consultation requirements — you may be required by WHS law to consult with your workers, or their representative, when developing and implementing the policy — even if this isn’t a specific requirement under the legislation applicable to your workplace, it may help to gain worker buy-in to the policy.
• Information, education and training — ensure workers are made aware of the policy, the standards that are expected of them and the consequences for breaching the policy. Provide training in the policy as part of the induction process for new workers and in specified sessions for existing workers and remind workers of the policy in a regular, timely fashion. This may include conducting regular ‘refresher’ training or toolbox talks.
• Procedural fairness — ensure the policy is applied consistently, fairly and in a non-discriminatory way to all workers.
• Consequences — ensure the consequences of a breach of the policy are proportionate to the situation that the policy seeks to address.
• Alternatives to termination — termination may not always be the most appropriate response to a breach of policy. Alternatives such as disciplinary action, education, training, counselling and/or other support should also be considered.
• Keep up to date to meet the needs of your business — your policy should be reviewed regularly to ensure it remains appropriate for your workplace and takes into account any amendments to relevant laws and practice relating to alcohol and/or drugs in the workplace.

What type of testing is considered appropriate?

It is reasonable to use breathalysers to test for blood alcohol content; however, methods of testing for illicit drugs can be a source of dispute. The two most common methods of testing are saliva and urine testing with saliva testing being the preferred method of testing; however, urine testing may be appropriate in certain circumstances. Subsequently, a PCBU would need to determine which method of testing is appropriate for their particular workplace and circumstances.

Who can conduct drug and alcohol tests?

Testing must only be conducted by suitably qualified professionals.

Do I need to take into consideration privacy laws?

Yes. You must consider the relevant privacy legislation when implementing or amending your drug and alcohol policy. In some states and territories, the results of drug testing could be considered as ‘health information’ under the relevant legislation. As a general rule, your drug and alcohol policy should be considered in conjunction with your company’s privacy policy.

Conclusion

Introducing a drug and alcohol testing program into your workplace is complex; therefore, we always recommend that you seek independent legal advice on the matter.

Have a drug and alcohol policy in place that is fair and reasonable and includes clear testing procedures, including what you are testing for, how testing will be undertaken and the process for dealing with positive results.

Ensure that your workers are aware of the policy and their obligations. Take the time to educate your workers, not only on the policy and their obligations, but also how to recognise if their colleagues are under the influence of alcohol and/or drugs, and what to do if they suspect that someone is under the influence.

Ensure that your testing program is justifiable as you must be able to demonstrate that you had to take steps to ensure the health, safety and wellbeing of your workers, visitors and others who may be impacted by your worker’s actions.

If seeking to terminate a worker for a breach of the policy, ensure that procedural fairness is considered in any termination process.

*Insync Workplace Solutions was founded in 2012 by a former NSW Police Officer, WorkCover NSW Inspector and WHS and HR Executive. Headquartered in Sydney and Auckland, the company has team members located across both countries.

Image credit: ©stock.adobe.com/au/Arcady