Thinking of adding drug and alcohol testing to your company policy? Here is what you need to consider first, from privacy risks to legal pitfalls.

Q. Our company is contemplating the introduction of drug and alcohol testing to our company policy. The rationale for the change is that the company would rather address the issue as a preventive or rehabilitative measure rather than a disciplinary one.

Our concern relates to the invasion of employee privacy and the reasonableness of such a policy, as well as whether this testing contravenes privacy law. What are the possible issues that need to be considered by the employer if it wishes to introduce drug and alcohol testing in the workplace? 


A. Any reasons for introducing drug and alcohol testing other than on health and safety grounds would be considered unreasonable as the employer has no control over the activities of its employees during their own leisure time (unless the out-of-hours conduct is so serious that it may damage the company’s business or reputation).

The implementation of a drug and alcohol testing policy is likely to be considered a workplace health and safety matter that requires consultation with all staff. It is particularly relevant in industries that are considered medium to high risk and, in some industries, may be a requirement under the relevant workplace health and safety law.

Industrial tribunals have generally determined that testing is an intrusion on the privacy of the individual, which can only be justified on health and safety grounds. The employer has an obligation to attempt to eliminate the risk that employees might come to work impaired by drugs or alcohol, where there is a potential risk to health and safety, while, conversely, the workforce may argue it is an intrusion into their personal lives. 

An employer should seek legal advice before implementing or changing a drug and alcohol testing policy. 

 

Drug and alcohol policy 

The employer should have a policy on drugs and alcohol in the workplace. The purpose of any such policy should be to: 

  • educate what employees about the standards that are expected of them,  
  • explain what their responsibilities are, and  
  • state what the consequences of a breach will be.

 
There should be a reference to the type of substances which can cause impairment, such as alcohol, cannabis, methamphetamines (cocaine and ecstasy), and opioids (heroin). Legal drugs (sleeping pills) should also be considered as part of any policy, as some prescription drugs or ‘over the counter’ medications can cause impairment.

In the context of unfair dismissal law, employers should ensure that employees understand the terms of the drug and alcohol policy and the consequences of any breach. The Fair Work Commission places importance on a well-communicated policy, along with training and ongoing education, as a defence for an employer when determining an unfair dismissal claim. The lack of a company drug and alcohol policy would be considered fatal to any defence by an employer in an unfair dismissal matter where the grounds for dismissal were alcohol or drug-related. 
 

Method of testing 

It is reasonable to use breathalysers to test for blood alcohol content. However, methods for detecting illicit drugs can be a source of dispute. The two most common methods of testing for illicit drugs are saliva and urine testing. In a matter before (then) Fair Work Australia, the Full Bench described the competing scientific merits of urine and saliva testing in that oral testing is more focused on acute impairment, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns. It concluded that, in this case, oral fluid testing for drugs should be adopted as part of the new drug and alcohol policy, rather than urine testing.

The employer would need to determine which method of testing is appropriate for each workplace. It should be noted that the Fair Work Commission has determined that urine testing is appropriate in particular circumstances. See Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075 (19 August 2015).
 

Privacy laws 

The relevant privacy legislation should be considered when implementing or varying a drug and alcohol policy. For example, the results of drug testing could be regarded as health information under the relevant legislation in Victoria, New South Wales, and the Australian Capital Territory. The company's drug and alcohol policy should be considered in conjunction with the company’s privacy policy. 
 

Bottom line 

Drug and alcohol testing is considered reasonable, provided it is used on the grounds of workplace health and safety. Saliva testing is generally preferred over urine testing. However, urine testing may be appropriate in certain circumstances. Before introducing an alcohol and drug testing policy, the employer should seek legal advice. 
 

Need help developing or updating your Drug and Alcohol Policy?

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