The dilemma of drug testing in the workplace

In terms of time, the workplace takes up a significant proportion of modern-day life. And like other facets of life, the workplace can act as both a window and an imitator of all of society's achievements as well as some of its ills. Drugs are also a part of human society - in fact they have been so for at least the past 5000 years, and perhaps even longer. But it is their consumption and use by employees while they are at work that is becoming of major concern to both unions and employers in Australia.

Overall it has been estimated that nearly one in five people experiences some problem with alcohol. When it comes to other drugs, recent studies have shown that in Australia, on average, one in twelve people have used some form of mind-altering substance in the past two years.

According to the International Labor Organisation (ILO), between 3 and 15 per cent of fatal work accidents are related to drug and alcohol use in the Australian workplace.

This is a potential minefield, both in terms of human safety and from a legal perspective.

Drug and alcohol use in the workplace can create a range of problems such as accidents, covering for poor performance, disputes and worker alienation. Employers are faced with late attendance, absenteeism, lost work time and accidents involving people, machinery and property.

The significant difference between the workplace and the community at large is that employers have legal responsibilities of care towards employees while they are physically in the workplace. This includes taking steps in preventing, or at the very least, minimising any foreseeable risks, which includes the use of drugs and alcohol while at work.

In recent times, the difficulty of managing this risk has increased as the areas of privacy and anti-discrimination have become more regulated. Occupational Health and Safety (OHS) laws and policies are increasingly colliding with both privacy and employment laws.

Not surprisingly, it has been the unions that have come out strongly against random drug and alcohol testing in the workplace. According to the NSW Labor Councils' OHS officer Mary Yager, "We are finding that employers are all of a sudden starting to get very nervous, thinking as part of their risk assessment that drug testing is what they need to do. In fact, it's the wrong way to go."

It is of little surprise that on the other side of the spectrum, the Australian Industry Group, (AIG), a national body representing most manufacturers in this country, the case for random workplace drug testing receives somewhat of a warmer response. AIG's deputy chief executive, Heather Ridout said recently, "Employers should have the right to conduct drug testing of employees. They are responsible under law for the occupational health and safety of the workers and are committed to drug-free, quality working environments."

These philosophical dichotomies aside, it is the prevailing legalities of workplace drug testing - both the 'for' and the 'against' cases - that elicit the most confusing of responses.

According to Occupational Health and Safety lawyers Rachael Brady and Tim Capelin, there are many indications that employers are increasingly adopting forms of workplace drug and alcohol testing in an effort to minimise the safety risks created by employees attending for work impaired by drugs or alcohol. However, say Brady and Capelin, "While some employers view this step as necessary in order to comply with OH&S obligations, employees and their unions are often concerned about what may be perceived to be a breach of privacy, or an unwanted incursion into an employee's private life. It appears that the greatest resistance arises from the concern that the testing will not be used solely for the purpose of creating a safe workplace."

According to both experts, one of the concerns that employees and unions often raise when any form of medical or drug testing in the workplace occurs, is how the results will be used by the employer. "While employee records are presently exempt from the Privacy Act, there are other areas of legal liability which may be triggered if employers are not careful with their record keeping. Further, if an employer fails to keep test results confidential, this is likely to lead to employees opposing the testing regime and/or to create industrial disputation."

The use of drugs and alcohol in and around the workplace creates significant safety issues for employers and employees alike. As Brady and Capelin point out, employers have absolute obligations to ensure the health and safety of employees while at work. Employees, on the other hand, while understandably concerned about the introduction of any practice which involves their employer imposing on their privacy, also have obligations to co-operate with the employer in practices introduced to comply with OHS obligations. There is no doubt that, in assessing whether drug and/or alcohol testing needs to be introduced, all involved need to balance the competing concerns. However, where the risk to safety is real, it is difficult to see how privacy concerns could outweigh legitimate steps taken by an employer to minimise the risk of injury or death in the workplace.

From all indications, it seems these are just the opening shots in the battle between employers and their legal obligations in maintaining a safe and secure workplace, and employees and their fundamental right to privacy and the presumption of innocence.