Why do you need a drug and alcohol policy

Drug and alcohol abuse can have serious consequences for employers and employees. It can cause injuries, absenteeism, lost production, poor performance, low morale, workers' compensation, rehabilitation, and losses associated with inefficiency, as well as damage to equipment and other property.

If the problem is not managed, it can lead to discrimination claims, lost work time and injury. Employees with drug and alcohol problems can cause injury to themselves and others, lose their jobs, and damage their physical and mental health.

Workmates may face an increased risk of injury and disputes, stemming from situations such as covering for a colleague’s poor performance or reporting a work friend to management. And, frighteningly, it’s not necessarily the drug or alcohol user who is injured – innocent co-workers or bystanders can be the victims of workplace accidents. Having a hangover or coming down from drugs at work can be just as problematic as being intoxicated.

Headaches, blurred vision, irritability, problems concentrating, a lost voice, and extreme tiredness can all create problems. Under the law, both employers and employees must take active steps to make their workplaces safer. This includes having – and enforcing – a strong drug and alcohol policy in the workplace.

These statistics demonstrate the extent of this impact in Australia:

  • Alcohol and other drugs cost Australian workplaces an estimated $6 billion per year in lost productivity.

  • More than 20% of Australian adults drink alcohol in excess of current guideline recommendations. Cannabis is the most widely used illicit drug in Australia, with 37% of users reporting weekly use.

  • One in 10 workers says they have experienced the adverse effects associated with a co-worker’s misuse of alcohol. The adverse effects include reduced ability to do your job, involvement in an accident or close call, working extra hours to cover for a coworker, and taking at least one day off work.

 

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 dispute procedure in the relevant industrial mechanism.

  • The company's alcohol and drug testing policy cannot be revised unilaterally by the company until the expiry of a new enterprise agreement.


3. Can you insist that employees undergo tests?

It is an accepted principle in industrial courts and tribunals that random testing is an intrusion on an individual's privacy and can only be justified on health and safety grounds. The employer has a legitimate right to try to 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 obligations imposed on employers 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 when 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 Ombudsman 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 your employees' actions at work functions and potentially at after-function activities. You still have a duty of care for employees' health and safety. Ensure responsible alcohol consumption, safe transportation arrangements, and that all employees are aware of relevant policies, such as harassment and work health and safety.

 


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