What to do

Consider these questions and their implications.

1. Do you have a drug and alcohol policy?

All employers should have a drug and alcohol policy and procedure. It puts you in a stronger position when it comes to dealing with workplace drug and alcohol-related incidents.

Whether you're using a drug and alcohol policy sample or starting from scratch, you should tailor the policy to your business. It should also apply to all employees. Develop the policy collaboratively with management, your workplace health and safety (WHS) representative, employees and the relevant union. 

Prevention, counselling, education, training and rehabilitation should be part of your overall WHS strategy. It is your responsibility as the employer to administer the policy.

However, just having a written policy is not enough. You should ensure the policy is reasonable, that employees are aware of and understand it, and that it is consistently applied. Taking these steps will minimise the legal risks resulting from drug and alcohol-related incidents and better prepare you to respond to relevant incidents.

2. What safeguards should be in a policy?

An employer should implement its alcohol and drug testing policy (including random testing for alcohol and drugs), subject to the inclusion of safeguards such as:

• Once there is a confirmed positive test result, the responsible manager (or preferably a medical officer) would speak to the employee to 'validate' the result. The manager (or medical officer) would discuss the implications of the test result and the options for treatment or rehabilitation, where appropriate. The responsible manager or medical officer would then provide a report to the company indicating the employee had tested positive and recommending future action.
• An employee who has tested positive would – unless there were significant mitigating or aggravating factors – receive formal counselling.
• A repeat positive test would receive progressively more serious sanctions, e.g. a formal warning, a final warning and, ultimately, dismissal.
• Employees who need time off for alcohol and drug-related problems would have access to the company's personal leave policy in the same way as employees who are ill or injured for other reasons.
• Disputes about the application of the company's alcohol and drug policy should be dealt with through the disputes procedure in the relevant industrial mechanism.
• The company alcohol and drug testing policy cannot be revised unilaterally by the company until the expiry of a new enterprise agreement.

3. Can you insist employees undergo tests?

It is an accepted principle by industrial courts and tribunals that random testing is an intrusion on the privacy of the individual, which can only be justified on health and safety grounds. The employer has a legitimate right to try and eliminate the risk that employees might come to work impaired by alcohol or drugs such that they could pose a risk to health and safety. Beyond that, the employer has no right to dictate what alcohol or drugs its employees take in their own time. 

Given the potentially hazardous nature of the work in a particular workplace, together with the obligation imposed on an employer by state or territory occupational health and safety legislation, the introduction of random alcohol and drug testing could be justified. However, any form of alcohol and drug testing in the workplace should comply with the International Labour Organisation code of practice on the management of alcohol and drug-related issues in the workplace. This is particularly the case where the testing is random, rather than 'for cause'.

4. What if employees refuse to be tested?

If a contract of employment refers to your company policy, which expressly requires an employee to comply with the policy, in the instance of drug testing, this could be deemed by the Fair Work Commission as the employee has refused to obey a lawful and reasonable direction by the employer, and may be grounds for dismissal.

5. Are you responsible for employees' actions at work functions?

There is a significant risk that you, as an employer, may be held responsible for the actions of your employees at work functions and potentially at after-function activities. You still have a duty of care for employees' health and safety. Ensure responsible consumption of alcohol, safe transportation arrangements, and all employees are aware of relevant policies such as harassment, work health and safety. 

Having a clear workplace drug and alcohol policy helps employers comply with WHS legislation. My Business Workplace has a drug and alcohol policy that can help you manage health and safety risks at work.