Under the influence: managing alcohol and drugs in the workplaceAugust 29, 2015
The Informant: Issue 8
The Australian working population’s use of drugs and alcohol is increasingly impacting on the bottom line of Australian businesses, costing an estimated $6 billion per year in lost productivity.1 These costs arise from issues such as workplace health and safety (WHS) incidents, absenteeism and presenteeism, where an employee attends for work when they are unfit to do so.
While many businesses have been reluctant to tackle drug and alcohol issues head on, due to concerns regarding employee privacy and/or potential push-back from unions, a failure to do so runs the risk of undermining the culture and health and safety standards in the workplace. Having policies, procedures and subsequent testing regimes in place has been seen to positively influence productivity and morale. This article will look at the ways businesses can proactively manage drug and alcohol issues throughout all stages of the employment life cycle.
The pre-employment and on boarding/induction stage is critical in establishing the expectations the business has of its employees and contractors, and in eliminating high risk candidates. For high risk industries, pre-employment drug and alcohol testing can be used to detect high risk employees and contractors, allowing an employer to identify and, if reasonable, exclude such high risk candidates from the recruitment process.
At the on-boarding/induction stage the there are two main ways businesses can make their expectations clear to employees, being through specific drug or alcohol policies and specific clauses within employment contracts.
In many cases, specific reference to drug and alcohol use and potential testing regimes should be included in employment contracts. This is especially so in ‘high risk’ positions where a zero tolerance approach (as a result of WHS obligations) is an appropriate position for the business to take. Usually, employment contracts will refer to the business’ ability to direct a worker to undertake a drug and alcohol test, either at random or if there is reason to believe the worker is under the influence of drugs or alcohol (show cause testing).
Policies and procedures
Recently the ‘zero tolerance’ policy approach to drugs and alcohol has come under the spotlight following a string of Fair Work Commission (FWC) decisions. These cases discussed issues such as:
- the meaning of intoxication vs the meaning of impairment
- the actual risks arising from impairment
- the reasonableness of a dismissal where drug usage is proved but is not necessarily an impairment.
Despite the contentions that exist around the legitimacy of ‘zero tolerance’ approaches, policies in general will assist businesses in dealing with any drug and alcohol related issues within the workplace.
A key risk for businesses in establishing drug and alcohol policy lies in their ongoing ability to act within the confines of the policy, and to amend the policy to respond to changes in operations or technology. In short, it is essential that the content is carefully drafted, and there is an ability to make reasonable changes to the policy.
With the right mechanisms in place businesses can conduct appropriate testing regimes where they suspect employees may be under the influence of drugs and alcohol. In light of recent FWC decisions,2 the appropriateness of the testing mechanism that is utilised must be carefully considered. Last year, the FWC expressed the view that urine testing, as opposed to saliva testing, is not necessarily the preferred method for detecting impairment. In Harbour City Ferries Pty Ltd v Toms3 the Commission noted that urine testing was ‘a testing system which in this case indicated past use and not present impairment.4‘
As considered above, it is essential that, if the business has a testing regime in place, consistent with policy, that testing is conducted in strict compliance with that policy.
Despite the reluctance of the Commission to accept ‘zero tolerance’ approaches in all instances, the Commission has shown that in instances where drug and alcohol testing was undertaken with WHS as its principle background purpose, proof of actual impairment may not be necessary when determining whether or not a dismissal was reasonable.
The Full Bench in Harbour City Ferries Pty Ltd v Toms5 noted that:
‘As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed… talk about drug tests establishing impairment…. What it wants is obedience to the policy.’
What is clear is that employers, when looking to terminate employees in instances where they have returned a positive drug or alcohol test, must consider the actual implications of the employee returning such a test.
For example, employers should consider the following:
- Are the health and safety standards in the workplace so high that, regardless of actual impairment, the positive test presents real WHS concerns for the workplace?
- Does the positive test simply show that the employee may have been under the influence at some other time or are they showing actual signs of being under the influence at time of the test?
Dealing with drug and alcohol issues within the workplace can be a complex process. Addressing drugs and alcohol through robust recruitment processes, clear contractual obligations, the implementation of sound policies and procedures, conducting appropriately timed and managed testing programs, and adopting consistent responses to any issues that arise will assist businesses to reduce the negative impacts of impairment and to effectively manage disputes that may arise from the process.
Do you have drug and alcohol issues in your workplace? Would you like to talk to us about how manage the situation? Please call us on (02) 9922 5188 or email us at email@example.com.
2 Harbour City Ferries Pty Ltd v Toms  FCWFB 6249, Endeavour Energy (No. 2)  FWC 198 & MUA v DP World Brisbane Pty Ltd & Ors  FWC 1523.
3 Harbour City Ferries Pty Ltd v Toms  FCWFB 6249.
4 see note 3.
5 see note 3.