The problems associated with alcohol and other drug use has long been recognised as a community concern.
Employers recognise the huge impact alcohol and other drug use can have on their business. Workplace accidents, loss of productivity and absenteeism are only some of the issues employers may face.
Alcohol and other drugs testing
Alcohol and drug testing is a controversial issue. There are a range of issues associated with testing for illicit drugs including confidentiality and employee concerns about privacy.
Introducing drug and alcohol testing into your workplace
There are no provisions in the Occupational Safety and Health Act 1984 or Mine Safety and Inspection Act 1995 that require alcohol and/or drug testing. Employers, therefore, have a choice as to whether to test, if risk assessments show particular risks in this regard, bearing in mind that:
- industries may have industry-specific legislation or codes that deal with alcohol and/or other drugs at the workplace and these should be referred to. For example, under Regulation 4.7 of the Mine Safety and Inspections Regulations 1995, a person (whether or not an employee) must not be in or on any mine while the person is adversely affected by intoxicating liquor or drugs;
- employers are obligated to provide a safe workplace under occupational health and safety (OHS) legislation; and
- other laws such as the Road Traffic Act 1974 and Workers’ Compensation and Injury Management Act 1981 also contain drug and alcohol provisions, and; drug testing is a contentious area and has limitations.
It is highly recommended that employers develop a thorough drug and alcohol policy prior to implementing testing in the workplace.
Policy development
An effective policy should include information on the following areas:
Rationale
The policy should include an explanation about why it is being implemented, with an emphasis on the safety and health of all workers and that alcohol and other drug usage can affect all individuals at the workplace such as other employees, supervisors, customers and visitors.
Aims and objectives
There is a growing view that the most effective drug and alcohol policies are those that are part of broader OHS goals, including fitness for work. The focus being both fostering and maintaining a safe work environment whilst providing an environment that assists and improves the health and safety of employees rather than predominately aimed at punishing the employees.
In the Fair Work Commission’s (the FWC) first decision on the principles governing the use of random testing in employment it was found that the company’s focus on discipline rather than counselling and rehabilitation was not fair and reasonable [Caltex Australia Limited v Australian Institute of Marine and Power Engineers, The Sydney Branch; The Australian Worker’s Union [2009] FWA 424(19) October 2009].
Scope
The application of the policy and its supporting procedures should be outlined. It should be clear that every person, including employers, directors, consultants and workers, as well as visitors, clients, customers and contractors entering the workplace, are covered. People at the workplace need to be assured that there will be no unlawful discrimination in the way they are treated under the policy and its supporting procedures
Workplace specific content and details
The policy should be an individual document that is specific to each workplace that takes into account workplace specific risks and hazards, as well as the specific controls and strategies in place to address issues arising from alcohol and/or other drug usage.
There is a danger in adopting pre-determined sanctions for non-compliance with an implemented drug and alcohol policy as this can produce an outcome that is perceived to be unfair. When drafting a drug and alcohol policy, it is important that employers consider whether the policy is appropriate to the circumstances of the workplace.
The policy should go no further than is necessary to protect an employer’s legitimate business interests in ensuring the health, safety and welfare of employees. For example, while a ‘zero tolerance’ policy may be appropriate in workplaces where heavy or dangerous equipment is being operated, it may not be considered reasonable to have such a strict policy in an office environment.
Infringement of the Policy
It is important to ensure that all people at the workplace have a clear understanding of what constitutes an ‘infringement’ in relation to alcohol and other drugs use. A written policy is a good opportunity for clear direction to be given about acceptable and unacceptable behaviour in relation to alcohol and other drugs.
Employers need to understand that there are currently no reliable measures to ascertain if an employee is ‘adversely affected’ by drugs. In addition, terms such as ‘under the influence’ or ‘impairment’ have little meaning in isolation.
For this reason, sound drug and alcohol polices are based on the notion of certain cut off levels. If an employee is tested and found to be above those cut off levels, they will be in breach of the policy.
In relation to drug testing, the cut off levels are normally linked to Australian/New Zealand Standards AS/NZS 4308:2008: ‘Procedures for specimen for the collection and detection and quantitation of drugs of abuse in urine’, and AS 4760:2006: ‘Procedures for specimen collection and the detection and quantitation of drugs in oral fluid’.
In the case of alcohol, the cut off ranges found in policies ranges from 0.5mg% (BAC of 0.05), to 0.2mg% (BAC of 0.02) through to 0.0mg% (BAC of 0.00) in certain industries such as mining and construction.
The policy should also indicate how the employees will be managed when they breach the policy, including whether they will be offered rehabilitation and/or an employee assistance programs.
Employees refusing to comply with testing
In Raymond Briggs v AWH Pty Ltd [2013] FWCFB 3316, the FWC found that it was unreasonable for an employee to refuse his employer’s direction to undertake a urine test for drugs. The employee’s contract of employment expressly stipulated the employee was required to comply with all policies, which extended to the drug and alcohol policy. The policy made clear that urine testing may be undertaken.
The FWC commented that “the approaches and policies to be adopted by employers on drug and alcohol testing in the workplace will depend upon what is deemed appropriate according to their needs and the circumstances”.
This case highlights the importance of having in place the appropriate contractual provisions, a robust policy, training and education on such policies and a consistent approach to policy breaches.
Policy training
It is also important that employers observe their own policies and ensure that all employees have received proper training about the policy. In Kidd v Linfox [2008 AIRC 398, 30 May 2008] the tribunal explained that employees can’t refuse to take a test that is authorised under an appropriate policy when they are properly trained in it. The case highlighted the fact that employers need to ensure that an appropriate level of awareness is maintained about policies in order to enforce them effectively.
Policies should also be applied consistently so that employees know what to expect if they are in violation. It is important that once a policy is established that the employer follow the procedures in the policy. Failure by an employer to follow their own procedures can adversely impact on the employer defending a decision to terminate an employee for breach of policy [Larkin v Boral 2003 WAIRC 07963].
Unlawful discrimination
Under the Occupational Safety and Health Act 1984, businesses have absolute duties to remove any risk – not just those that are ‘reasonably foreseeable’. In the case of Caltex v Australian Institute of Marine and Power Engineers, the tribunal discussed that these ‘absolute’ duties imposed upon the applicant as well as the significant hazards associated with their refinery allowed them to introduce a random drug testing policy. Based on the evidence from this decision, employers in other high-risk industries may also not have to undertake a specific risk assessment before introducing such a policy.
Assuming that a random testing policy has been adopted, it is important to ensure it includes non-discriminatory guidelines which set out how the business will determine who is to be tested. This may assist an employer in proceedings where an employee has claimed that he or she has been unlawfully targeted, for example on the basis on race, gender or age.
In some circumstances, employers may be selective in which candidates they select for drug and alcohol testing. In the case of Shell v CFMEU [2008 AIRC 510, 25 August 2008] it was ruled that employers may choose to limit testing to certain groups of employees within their workforces if there is an objective basis for doing so. This can be done by following a reasonable risk assessment process where employers could assess the risk of impairment
While no conclusive evidence links impairment and a positive urine or saliva test, a risk of impairment is deemed adequate to raise occupational health and safety concerns at work and thereby provide the proper basis for a drug and alcohol testing regime.
Standards compliance
Expert guidance should be sought before drug testing is introduced to ensure that appropriate safeguards include ensuring test results are supervised and assessed by a qualified person. Employers may need to be familiar with Australian Standard 4308 which outlines the recommended practice for the collection, detection and quantification of drugs of abuse in urine.
Employers should be alert to issues that may arise during the testing process including the possibility of inaccurate results and false positives. Other issues may relate to insufficient integrity of the testing process and the interpretation of results. Employers should ensure, as far as practicable, that a proper chain of custody of the samples is followed.
Testing strategies
Random testing - Testing all employees on a random day or a select group of employees (for example, 10%) discourages drug and alcohol use and abuse as it makes testing unpredictable.
Pre-employment testing - Testing all potential employees before offering employment lowers the risk of hiring someone who is currently a drug or alcohol abuser.
For cause tests - Testing employees who are under reasonable suspicion of being unfit for duties protects the safety of the employee, other workers and the public at large.
Post-incident tests - Testing employees who have been involved in an accident or near-miss can help determine if drug or alcohol use was a factor and assist in maintaining safety in the workplace.
Follow-up tests - Testing employees before they return to work after a positive test or as periodical follow-up can help to ensure they are no longer under the influence of drugs and/or alcohol.
Methods of testing
Testing for alcohol
When considering the introduction of alcohol testing, employers need to ensure they adopt the least invasive means of testing. Breathalysers, for example, use less invasive processes than other alcohol tests and eliminate the need for chain of custody considerations as the employee and person testing are both present during the process. Breathalysers may also provide a more cost-effective solution than other testing options.
Procedures for identification should be clearly spelled out in the workplace policy and the supporting procedures need to be clear to all persons at the workplace.
Drug Testing
Urinalysis
Urinalysis drug tests are the most commonly used type of test. The test provides an indication of past drug use and is often used to detect recreational and long-term use. As with saliva testing, the test cannot prove ‘impairment’.
As some drugs stay in a person’s system for longer due to their half-life, whilst a drug may be detected, the person may not be ‘impaired’ by the drug.
A urinalysis drug test can also be cheated because of simple adulteration or substitution, unless specimen collection is directly observed.
Advantages
- Scientifically valid
- Meets the Australian Standard
- Detects history of drug use
Disadvantages
- Messy
- Intrusive
- Increased risk of use of dilutants, substitution and adulterants.
- Results may be positive even without the subject encountering actual impairment
Saliva
Saliva testing is looking for the active ‘parent’ ingredient of the drug in question, not the metabolite (a metabolite is what is left over after the body has processed the drug). Saliva testing seeks to measure recent usage rather than habitual drug abuse.
In July 2013, the National Association of Testing Authorities (NATA) announced the withdrawal of its accreditation for the on-site testing component of Australian Standard 4760. This still gives employers the ability to send saliva tests for further lab testing but means that saliva testing is no longer able to be carried out on-site.
Advantages
- Less intrusive
- Results in minutes
- Good for codeine and opiates
- Identifies recent drug use as opposed to a drug history
- Observed taking of sample eliminates the chance of the sample being diluted, substituted or adulterated
Disadvantages
There are currently no target concentration levels for benzodiazepines in the Australian Standard.
With respect to cannabis, the sensitivity of current tests is very low largely because it detects debris in the mouth, thus producing a high incidence of false positives and negatives. As such it tends to be a poor indicator of the presence of stimulants (i.e. amphetamines or methamphetamines etc.).
Urine versus Saliva testing
It must be reiterated that neither oral testing nor urine testing produces completely reliable data. However, as more workplace drug testing is taking place, the trend of saliva testing over urine testing for drugs has started to emerge despite the limitations of saliva testing (i.e. that it identifies only very recent drug use and not habitual use and that there is no longer an Australian Standard against which test results may be compared).
In the case of Shell v CFMEU, it was held that once qualifications were satisfied, oral fluid-based testing should then be used as the preferred random testing method. This conclusion was supported in Endeavour Energy v CEPU, ASU and Others [2012] FWAFB 4998 where the full bench upheld Senior Deputy President Hamberger’s decision that the company could only administer saliva tests instead of urine tests.
Synthetic drugs
Testing for synthetic drugs can prove problematic for employers as synthetic drugs will generally not register on a standard site-based drug test. There are testing services available that can recognise synthetic substances however they can by expensive. Additionally, there are currently no Australian Standards for impairment levels with respect to synthetic drugs.
As a precautionary measure, it is important that employers’ drug and alcohol policies include synthetic drugs to provide scope for managing positive results in this regard.
Employers seeking further clarification should contact the Employee Relations Advice Centre on (08) 9365 7660 or [email protected]
Further information
National Centre for Education and Training on Addiction
National Association of Testing Authorities, Australia
For more information, employers may be interested in CCIWA’s Employer’s Guide to Managing Drugs and Alcohol in the Workplace. The Guide contains further information on drugs and alcohol in the workplace, as well as a template drug and alcohol policy
If you would like to order this Guide or require further information, please contact the Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].
