Under section 25 of the Occupational Health and Safety Act 2004 (Vic), employees are required to work free from the influence of drugs and alcohol. As impaired workers may cause workplace accidents, injuries and fatalities, identifying and removing impaired workers is a reasonable safety precaution that can be taken by employers and businesses (see Caltex Australia Ltd v Australian Institute of Marine and Power Engineers [2009] FWA 424.
According to Worksafe Victoria, random drug testing improves safety through deterring drug use among workers and, in some cases, can ensure employee integrity or trustworthiness.
What type of drug testing is allowed?
Even though random drug testing involves a trade-off between the privacy of the individual and workplace safety, safety reasons validate such invasions of privacy. Furthermore, the adoption of a risk assessment processes to identify which employees should be subject to random testing is appropriate, as long as the methodology for doing so is contained in the policy and it is not unreasonable (Shell Refining (Australia) Pty Ltd, Clyde Refinery v Construction, Forestry, Mining and Energy Union [2008] AIRC 510 at 127-8).
However, the appropriate method of drug testing should be through oral fluid, not urine testing.
Laboratory testing is necessary to confirm any positive test to Australian standards and is generally more accurate than ‘point-of-collection testing’ (POCT). POCT devices provide more timely results, but laboratory analysis can better differentiate illicit from prescription drug use. (Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others [2012] FWA 1809).
Furthermore, employees in any particular workplace should not be subject to random testing until six weeks have elapsed since an education program has been rolled out in relation to that particular workplace policy. Employees should not have to disclose personal information about prescription medication unless and until they have returned a positive test.
In Raymond Briggs v AWH Pty Ltd [2013] FWC 2017, the court ruled that refusing to take a drug test may result in a legal dismissal. Briggs challenged the urine test, and requested a saliva-swab test instead, which he was denied then subsequently terminated. The Fair Work Commission ruled that the company policy had been made clear to Briggs and was lawful, thus the dismissal was justified.
The primary concern surrounding urine testing is that it may reveal “historic drug use” – displaying evidence of drug and alcohol intake from when the employee was not at work. Not only do some employees feel this would be in violation of their privacy, but it may produce results that do not actually affect the workplace yet could still influence employers. As such, saliva testing – which gives results indicative of more immediate drug use – has become the standard used by many employers.
Where to from here?
The policies and the education program
Current workplace policies are extremely important if your business intends to conduct random drug and alcohol testing. The policy should at a bare minimum:
Outline the aim of implementing the policy;
Define employee and employer responsibilities;
Explain the testing procedures; and
Indicate the consequences and procedures following non-compliance with the policy.
Some common errors in policies include:
Incorrect cut off levels – 50 mg/L is NOT the confirmatory cut-off level for cannabis, this is the screening level;
Incongruent terminology for example references to “zero tolerance”, “impairment” or under the influence;
“Instant dismissal” approaches will not be viewed favourably (should have some rehabilitation procedure in place)
Failing to accommodate legitimate medicine – as a small number of pharmaceuticals can produce positive results; and
Failing to apply it to contractors and checking the consistency of the policy to any applicable award and/or enterprise agreement.
Businesses must ensure that the policy is distributed to all employees and contractors, and appropriate training is provided including new worker induction, regular refresher training for existing workers and loose-leaf editions of the policy in appropriate places in the work vicinity.
