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 and the courts will then 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 both 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 the employer cannot dictate which drugs and alcohol its employees take in their own time. The key issue is the extent to which the consumption of drugs and 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 whether the inherent nature of the work is hazardous or contains risks to employees or other persons (e.g. employment involving machinery or driving trains or buses, which includes risks to members of the public, is likely to have much more stringent drug and alcohol policy requirements).
Courts and Industrial Commissions have identified relevant issues to include:
- Policies should explain the potentially harmful effects of drugs and alcohol in the workplace.
- Policies should emphasise rehabilitation rather than strict discipline.
- 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.
- Employers should provide training and education sessions beforehand to educate employees about the employers’ drug and alcohol policies including random testing, so that the employees are aware of the policies and testing procedures.
- The courts have indicated that 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 at work.
- A policy may also need to contain appropriate methods of testing. More recently, courts have tended to give preference to oral fluid testing over urine testing as urine testing could simply indicate drug or alcohol use over the previous few days which is unlikely to cause impairment of employment duties.
- A policy must also ensure that there are requirements to protect the confidentiality of test results. The employee’s Line Manager should only being informed of a positive test result after the result has been validated.
These issues 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 their own time and their right to privacy, as against the right of an employer to ensure that it does maintain 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 Graham Harbord on (08) 8231 1110 or get in touch online.