Why do employers drug test workers?

Employers have a duty to provide a safe workplace. Under the Health and Safety at Work Act 2015 (HSWA), employers need to identify hazards, assess risks and apply control measures to keep people safe at work.

Like other hazards in the workplace, drugs and alcohol pose a known risk to health and safety. The risk needs to be managed in a proportionate way taking into consideration the nature of the work performed.

Workers also have a duty to turn up fit to work, ensure their actions don’t harm themselves or others and to comply with reasonable health and safety policies, procedures and instructions.

Should you have a drug and alcohol policy for your workplace?

Employers need to balance privacy considerations, human rights, employment relations and health and safety obligations.

In order to test workers, employers should have a robust drug and alcohol policy in place. The policy needs to be reasonable and there needs to be a good reason to test.

There are different types of testing, including:

• Pre-employment testing. This is where a job applicant might be required to pass a drug and alcohol test as part of the recruitment process. 
• Reasonable cause testing. This is where there is a suspicion, based on reasonable grounds, that a worker might be impaired by drugs or alcohol.
• Post-incident testing. This is where you might require workers involved in an accident or a near miss to undergo testing. Not all incidents will warrant testing.
• Pre-engagement testing. This is where a client might require your employees to be tested before entering their sites.
• Random testing. This is where employees who carry out safety sensitive work can be randomly selected to undergo a test. If employees are required to drive as part of their role or are required to carry out work that poses a risk to their own or others’ health and safety, then it is good practice to have a drug and alcohol testing policy in place.

How can you implement a drug and alcohol policy?

Under the HSWA, employers need to provide workers with appropriate information, training and supervision, and engage with workers about health and safety matters.

This means you need to consult with employees about health and safety policies and procedures before they are implemented. This involves at a minimum:

• Providing employees with a copy of the draft policy
• Giving employees a reasonable opportunity to provide feedback
• Considering feedback before implementing the policy

Once implemented, health and safety policies and procedures should also be reviewed and monitored to ensure they are effective. 

How do I make sure the policy is fair and reasonable?

A number of privacy, human rights and employment considerations need to be taking into account when drafting a testing policy. There are also Australian and New Zealand testing standards that need to be adhered to.

At a minimum, your policy needs to:

• Outline obligations and expectations of workers
• Identify the different types of testing that will be carried out
• Explain the process for testing
• Set out the potential consequences for a positive test or other breaches of the policy

Implementing a non-compliant policy can be costly.

If an employee returns a positive test does that mean they were under the influence?

Not necessarily. Testing will not tell you whether an employee was impaired or under the influence. Testing only determines whether an employee has a level of drugs or alcohol in their system and/or whether this is above the cut off levels.

Employers should steer clear of using language like “you were impaired at work” or “you were under the influence”. The key issue is whether the employee’s conduct was in breach of the policy.

Employers can’t determine whether someone is under the influence at work. Drug and alcohol testing is a safety control measure used to mitigate the risks posed by drug and alcohol use. Workers have an obligation to comply with reasonable health and safety policies. If they breach the policy, this may be a disciplinary issue.

Get in touch with our team

If you have any questions about your obligations or if you would like assistance with drafting or reviewing your current testing policies, get in touch with a member of our team.

We can provide your business with a best practice drug and alcohol testing policy for a fixed price of $1000 + GST.

Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.