When Can You Drug Or Alcohol Test Your Employees?

Are you unsure about when you can drug or alcohol test your employees?

In Australia, drug testing is generally seen as an intrusion of privacy, with certain exceptions.

If your company is contemplating introducing drug testing to your workplace, you have two things to consider.

First is your employees’ opinion on Australia’s workplace drug testing laws.

Second is whether you have a working drug and alcohol policy at work.

Let’s examine these two points and find out how they could affect your decision to introduce drug testing at work.

Is drug and alcohol testing at work legal in Australia?

Yes. In Australia, it is perfectly legal to conduct workplace drug testing in your place of business. However, it is crucial that you establish a comprehensive workplace drug and alcohol policy in place beforehand.

Take for example the case of Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales (2017) FWC 4916 delivered 20 September 2017 per Platt C.  An employee succeded in their claim to an unfair dismissal due to an inadequate workplace drug and alcohol policy.

Therefore, before you drug or alcohol test your employees, it’s imperative that you educate them on the terms of your drug and alcohol policy. They should have a good understanding of the types of drug and alcohol tests that they could undergo.

So, again, drug and alcohol testing at work is legal as long as it is part of a comprehensive workplace drug and alcohol policy

Drug testing and the law

Testing for drug and alcohol use in Australian companies is not uncommon. For some industries, drug and alcohol testing is compulsory, such as in construction, aviation, and transport.

Since 2015, amendments to the Building Code 2013 have made it mandatory for building contractors working on building sites financed by federal dollars to undergo drug and alcohol testing.

As an employer, you have the right to insist on a drug or alcohol test for your employees, granted that the reasons are justifiable such as:

• the improvement of workplace productivity
• health concerns
• workplace safety
• maintaining employee integrity

But having justifiable reasons for drug or alcohol test is not enough. You are also required to stick to the parameters in your drug and alcohol policy. These parameters include:

• when the drug test can occur
• the type of drug test to administer
• how the results will be used
• how the company will respond to a positive test result

Having all these in outlined in concise an clear language is key to having a workplace that supports and trusts your drug testing policy.

Cultivating a drug and alcohol-free workplace culture

Tolerating alcohol consumption at work is risky. It can also bind you in a legal battle should your employee go over the acceptable limits of alcohol use.

In 2015, an insurance broker filed an unfair dismissal case against the company. The insurance broker was drunk and passed out in a hotel corridor. The next day, he showed up to work hungover.

The NSW District Court found that alcohol consumption in a work context was not uncommon at the company and that the dismissal was harsh.

What this case shows is that you cannot terminate an employee on the grounds of alcohol abuse if your company endorses the behavior.

Therefore, if you allow your employees to consume alcohol from time to time such as in work events, make sure your drug and alcohol policy is clear on what constitutes a breach of policy.

When can you drug test employees?

As an employer, you are responsible for providing a safe workplace free from drugs and alcohol for your employees.

So, if you suspect an employee is using or abusing drugs or alcohol, you can act in accordance with your workplace drug and alcohol policy.

It is perfectly legal to request that your employee undergo a drug or alcohol test as long as the parameters are clear in your policy.

It is perfectly reasonable to make your employee undergo a drug or alcohol test especially if he or she is transporting goods or passengers, transporting goods, operating heavy machinery, or in law enforcement.

Can an employee decline a drug or alcohol test?

Your employee does have the right to decline an invitation to a drug or alcohol test.

But in accordance with a workplace drug and alcohol policy, he or she can face disciplinary action.

The company can argue to the Fair Work Commission that the employee’s refusal to submit to a legal and reasonable request to undergo a drug or alcohol test. It can serve as grounds for dismissal.

Therefore, your workplace drug and alcohol policy should state what happens in the event that an employee declines a drug or alcohol test.

What happens if an employee tests positive for drugs or alcohol?

If your employee tests positive, your next course of action should be in accordance with your workplace drug and alcohol policy.

First, you should inform your employee that he or she tested positive. Next, you should develop a plan of action moving forward.

Many Australian companies usually start with counseling and follow it up with another test. Only when an employee consistently tests positive does it result in a termination.

How is a drug or alcohol test conducted?

Drug and alcohol tests require a swab of a person’s saliva or a urine sample to detect the presence of drugs of alcohol in the system.

A urine test can detect the use of recreational drugs while a saliva test is best for identifying if a person is under the influence of drugs or alcohol at work.

With the alarming statistics on drug use at work, it’s never been so important to develop a workplace drug and alcohol policy that includes drug and alcohol testing your employees. A combination of both has been shown to be a highly effective deterrent against drug and alcohol use and abuse.

Drug-Safe Australia can help you develop a drug and alcohol policy for your business. We regularly conduct reviews and refresh and update your workplace policy, so that your employees are aware of their obligations.

If you have questions regarding drug or alcohol testing, feel free to call us. Let us help you in preventing the infiltration of drugs and alcohol in your workplace.