Workplace Drug Testing

The spate of tragedies at music festivals during the recent summer months sparked a ferocious debate over acceptable measures for drug and alcohol testing.

But in the workplace – where sobriety is demanded – policies are more clear-cut. Or are they?

Do employers really know their rights and obligations when it comes to determining whether employees and sub-contractors are working under the influence?

The fundamental point is that a workplace drug or alcohol test cannot be forcibly administered. If an employee does not wish to submit, they are free to pass. To make them do otherwise would constitute a possible assault, exposing the employer to a criminal charge.

So how can workers be compelled to co-operate?

The short answer is by establishing consequences for non-compliance in the workplace agreement.

It’s also vital the same document spells out very clearly the circumstances under which testing can be conducted, and ideally what substances will be monitored.

Such an explanation ensures the worker agrees to the policy before commencing duties.

And while acquiescence also does not compel him or her to undergo testing, it does tie them to any disciplinary measures or punishments that have been set out as consequences for refusal.

In recent years, the Fair Work Commission (FWC) has been quite generous toward businesses wanting to institute testing.

In 2015, FWC even supported a subcontractor’s right to test tradespeople it engaged on a building site, even though the subcontractor did not have a specific policy itself. Instead, they were implementing the policy of the head company overseeing the project. This was deemed reasonable.

Consideration should also be given to the difference between drug and alcohol testing measures.

Breathalyser tests for alcohol do measure impairment as they provide a real-time evaluation of the level of alcohol in one’s system.

Drug tests are different. They search for the mere presence of illicit substances; not a level at which it is universally agreed impairment becomes an issue. That means a person who consumed illicit drugs in their free time days or even weeks beforehand could be caught in the crosshairs.

Under those circumstances it can be challenging to impose a penalty, given there may be debate over whether the person has reported for duty in a fit state.

Again, the solution to grey areas like this resides in a clear, transparent and well-communicated agreement and/or policy.

If you’re unsure about how to start devising one, Partner, Lee Pawlak or Associate, Dominic Tonkin from our workplace law team can assist. We understand how important safety on the job is; and have deep experience developing policies and clauses that support and promote this very important principle.


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