Drugs & Alcohol in the Workplace.

Employers are becoming increasingly concerned about the possible risks of employees being under the influence of alcohol or drugs in the workplace.

The Courts and Industrial Commissions have repeatedly stated that the employer has the right to manage and regulate its own business and that this may include the right to introduce a drug and alcohol policy.

However, there have been a number of cases where employees have disputed the specific contents of such a policy on the grounds that they are unjust or unreasonable. In these cases, the courts will examine the contents of policies and compare them with accepted industrial standards.

The rationale behind a drug and alcohol policy relates to the obligations under various occupational health and safety laws e.g. the Work Health & Safety Act 2012 (SA). Employers have an obligation to ensure that the health and safety of employees and other persons at the workplace is not put at risk. The courts have accepted the premise that drug and alcohol policies may be necessary to enable employers to comply with their health and safety obligations. However, courts have also stated that an employer cannot dictate whether its employees use drugs or alcohol in their own time. The key issue is the extent to which the consumption of drugs or alcohol affects a person’s employment.

Regard will therefore be had to both the specific nature of the work and the work environment which employees are involved in. This includes considering whether the inherent nature of the work is hazardous or contains risks to employees or other persons. For example, employment involving machinery or driving trains or buses, which includes risks to members of the public, is likely to justify much more stringent drug and alcohol policy requirements.

Courts have identified relevant matters as including the following:

1. Policies should explain the potential harmful effects of drugs and alcohol in the workplace.
2. Policies should emphasise rehabilitation rather than strict discipline.
3. Employees who are absent from work due to drug or alcohol problems should be treated the same way as any worker with health problems, including in relation to access to leave entitlements.
4. Employers should provide training and education sessions to educate employees about employers’ drug and alcohol policies, including random testing, so that the employees are aware of the policies and testing procedures.
5. There is nothing unreasonable about random drug and alcohol testing. Furthermore, employers should have a right to subject employees to drug or alcohol testing where a specific incident or pattern of behaviour indicates that an employee may have been impaired by drugs or alcohol at work.
6. A policy may also need to stipulate appropriate methods of testing. More recently, courts have tended to give preference to oral fluid testing over urine testing, as drugs or alcohol use over the previous few days, which are unlikely to cause impairment of employment duties, often show up in urine testing.
7. A policy must ensure that there are requirements to protect the confidentiality of test results. For example, an employee’s line manager should only being informed of a positive test result after the result has been validated.

These matters indicate that there is a careful balance that needs to be struck between an employee having the right to do what he or she wants to in his or her own time, and employees’ right to privacy, against the right of an employer to ensure that it maintains a safe workplace for all its employees.

It is recommended that employers who are seeking to develop such a policy, and employees who may be subject to discipline action for an alleged contravention of such a policy, obtain legal advice to ensure that there has been a proper balance struck between these competing rights and obligations.

At Johnston Withers Lawyers, our employment lawyers have experience in providing advice to employees and employers on drug and alcohol policies. If you need advice or direction from a lawyer, please contact our employment lawyers on (08) 8231 1110 or get in touch online.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.