Barbara Buckett and Associates Barristors and Solicitors

trendz - our client newsletter

may 2007

drug testing - can you do it?

A recent report on national drug and alcohol usage in Australia raises questions as to the need to monitor and manage drug usage and the impact in the workplace on things such as health, safety and productivity. The report states that the workplace is the usual place for 9.5 percent of methamphetamine users to use the substance. The report also linked alcohol consumption to absenteeism and negative work-related behaviours.

The answer as to whether you can drug test or not is straightforward because there are only limited situations where staff can be drug tested. The law in this area balances civil liberties and the obligations of an employer to ensure a workplace is safe.

when drug testing is acceptable

There are generally 5 occasions when an employer may be justified in drug testing its staff:

Prior to employment;
Where actions, appearance, behaviour or conduct suggest drugs may be impacting on an employee’s work;
Immediately following an accident/incident, or a near miss;
In a "safety sensitive" area on a random basis;
Where an employee seeks to be transferred to a "safety sensitive" area.

NOTE the law is unclear on what constitutes a "safety sensitive" area, although working in the aircraft industry has been held to be a safety sensitive area in a case involving Air New Zealand.

In the Air New Zealand case the employer, Air New Zealand, wished to drug test its employees. The union challenged its right to do so. The court upheld the employer’s right to carry out the drug tests in the five circumstances listed above. It stated that random testing can only be carried out on employees who work in "safety sensitive" areas. Thus, random drug tests may not be conducted on employees who do not work in such an area.

drug testing policies

Of importance in the Air New Zealand case was the fact that the employer had put together a comprehensive policy, which had taken time and resources together with lengthy consultation with the union to complete.

Accordingly if you are contemplating drug testing seek advice and develop a policy around the issue in consultation with staff.

The policy should as a minimum cover:

The relevant concerns for the employers business and why in respect of that business drug testing is necessary;
Procedures which minimise undue intrusion into the privacy and civil liberties of the employee;
The less intrusive the method of drug testing, the more likely the policy will be deemed to be lawful and reasonable. It is therefore important for employers to be up to date with changing technology to ensure that they are testing employees using the least intrusive method.That the testing meets the accepted Australian / New Zealand standards;
That education and awareness programmes are included;
The availability of support and rehabilitation for employees who seek assistance in recovery;
A process for confidentiality of results and information;
A process for informed consent to comply with the Privacy Act requirements;
Availability of a medical review - for example, through professional medical personnel;
How a refusal will be dealt with through a disciplinary process - for example, the court in the Air New Zealand case stipulated that a refusal to be tested must not be presumed to be an admission of guilt.How a positive result will be dealt with through a disciplinary process;
A drug testing policy is more likely to receive employee approval if an employee who returns a positive drug test result is to take part in rehabilitation programmes, rather than being dismissed in the first instance. A good consultation process informing employees about the testing;

Employees are expected to co-operate with maintaining a healthy and safe environment. The need for an employer to monitor that employees are not taking drugs in certain circumstances is now recognised as being no different from being required to wear safety gear.

If you are wishing to introduce drug testing then make sure you have sound policies in place. Know what you can or cannot do. For example, can you test all employees if you smell cannabis in your workplace? What if an employee tells you that they saw a fellow employee taking drugs earlier, but the employee under suspicion is not acting as though they are under the influence of drugs? Or if an employee is frequently absent from work and/or is performing poorly, which you suspect is due to their intake of drugs or alcohol?

The court in the Air New Zealand case emphasised its findings were specific to the particular circumstances of Air New Zealand and its workforce and therefore, what you can do needs to be determined, at this point in time, on a case by case basis. Thus, whether drug testing is reasonable in a workplace will depend on the type of workplace and what is required for it to be a healthy and safe workplace. Drug testing is more likely to be considered to be reasonable in workplaces like Air New Zealand, where employees are responsible for the safety of others, than workplaces where this is not the case.

alcohol

The Australian report states that in 2001, as the frequency of risky or high-risk alcohol consumption increased, so too did the proportion of employees missing days of work in the last three months, the proportion of employees attending work under the influence of alcohol in the last 12 months, and the proportion of employees who usually drank at work. Such findings illustrate that employees’ consumption of alcohol, which has long been recognised as impairing a consumer’s performance, can or should be of equal concern to employers as employees’ consumption of drugs.

The position in relation to alcohol testing employees is less clear than that on drugs. The court in the Air New Zealand case made no ruling on this point, but indicated that alcohol testing, confined to breath testing, would probably be acceptable. An employer wanting to alcohol test staff should be mindful of the same considerations as those that relate to drugs when creating a policy on alcohol testing.

what you can do?

An employee under the influence of drugs or alcohol in the workplace can be a danger to themselves, others, as well as being less productive. Are drugs or alcohol an issue in your workplace? Do you want to alcohol or drug test employees to find this out? Can you manage risks associated with drug usage? Are you meeting your obligations under the Health and Safety in Employment Act? Is your current drug testing policy up to scratch?

If you are in a business where drugs or alcohol are an issue and you suspect that testing is warranted, don’t leave it until something happens - consult us your employment law specialists for advice on implementing a drug or alcohol testing policy, or for an objective assessment of your existing policy. We are here to help!

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Disclaimer: This article is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Please refer to our Legal Notices.