Australia: Drug and alcohol testing at work

Many Australians are expected to partake in random drug testing at their places of work.

Employers and persons conducting a business are required to manage workplace risks, with employees required to be fit enough to perform their job.

Drug testing in the workplace is a strategy that may be used to manage such risks, and thus ensure compliance.

It is permitted under law, for employers to conduct workplace drug testing, with it mandatory in some industries.

However, it is crucial for workplaces to establish comprehensive workplace drug and alcohol policies, prior to doing so.

This is to enable employees to be aware of and educated regarding a certain workplaces' policy, and what types of testing they may undergo.

In Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales (2017) FWC 4916, an employee succeeded in an unfair dismissal claim on the basis that the workplace had an inadequate workplace drug and alcohol policy.

A workplace should abide by a drug and alcohol policy, which should outline parameters such as:

• why testing occurs,
• when the drug test can occur,
• the type of drug test to be administered,
• who may conduct the testing,
• how the results will be used,
• the grievance and complaints process, and
• the consequences of a positive test.

The number of warnings an employee may receive before disciplinary measures are imposed will need to be outlined, or it may specify that there is a ‘no tolerance' policy.

It is important to note that a positive result will not necessarily equate to being dismissed automatically, with many workplaces developing action plans or imposing formal counselling prior.

A policy should also outline the consequences of an employee refusing to submit to a drug or alcohol test, which may be grounds for disciplinary action or dismissal.

The Fair Work Commission has held that it is inappropriate for an employee's direct manager, or someone who is well-known them, to collect a urine sample from them.

The workplace drug and alcohol policy must also be justifiable in light of health concerns, employee safety, and workplace productivity.

Therefore, the stringency of the drug and alcohol policy must be relative to the risk of the workplace.

INDUSTRIES DRUG AND ALCOHOL TESTING IS MANDATORY AT WORK

In industries which are characterised as ‘high-risk' and ‘safety critical', testing is mandatory.

Such industries include:

• Aviation (i.e., pilots and air traffic controllers),
• Transport (i.e., bus, ferry, and train drivers),
• Operators of dangerous machinery,
• Firefighters (through pre-employment and ongoing screening),
• Military personnel; and the
• Building and construction industry.

The main types of drug and alcohol tests employed in a workplace are urine tests and saliva tests.

Urines tests will involve workers peeing into a cup, whilst being ‘supervised'.

Saliva or ‘oral' fluid tests will involve a swab being taken from ones mouth.

Hair follicle testing is not commonly utilised in Australia due to its costs, invasive nature, and the relatively small number of laboratories which provide it.

Different tests have different levels of accuracy and different turnaround times for results.

These tests will usually be able to detect use of amphetamines (methamphetamines, speed, ecstasy), cocaine, cannabis, benzodiazepines (medications such as Valium or Xanax), opioids (heroin, opium, codeine), and alcohol.

It is important to note that tests are not 100% accurate, and workplaces should advise of mechanisms for challenging the results if you feel as if they are incorrect.

A urine test will be able to detect the use of recreational drugs, whilst a saliva test will be more suitable for determining whether a person is under the influence of drugs or alcohol at work.

Employers may utilise services that provide ‘mobile clinics' which set up onsite drug tests.

Businesses have a range of options for how drug and alcohol testing may be conducted in the workplace.

These modes, which will need to be outlined in a relevant drug and alcohol policy, include:

• Random testing (unannounced and essentially a ‘surprise' test),
• Blanket testing (where all employees are expected to be tested routinely in a single event),
• ‘For cause' or targeted testing (where an employer has reasonable suspicion that a worker is under the influence),
• Pre-employment testing (where an employee will be subjected to tests prior to commencing),
• Voluntary testing (where an employee chooses to be tested, of their own accord).

Certain tests, which may be imposed as part of a disciplinary process, include:

• Post-incident testing (where an employee is tested after an accident has occurred),
• Post-positive result testing (where an employee must submit to testing to return to work, after returning a prior positive result),
• Rehabilitation testing (where an employee undergoes testing after having rehabilitation for misuse of drugs or alcohol).

IS MY EMPLOYER REQUIRED TO REPORT TO POLICE IF THEY FIND ANYTHING ILLEGAL?

Returning a positive drug test at a workplace will generally not involve the imposition of any criminal penalties or charges, with an employee instead facing disciplinary action or termination.

However, being under the influence of drugs or alcohol at high-risk workplaces, may lead to an employee becoming accident-prone, resulting in injury or death.

Inevitably, these types of accidents may result in severe criminal penalties.

Furthermore, if driving is a central part of one's employment, being under the influence of drugs or alcohol and returning a positive reading at roadside, when conducted by police officers, can result in loss of licence, and other criminal penalties.

If you or an employer conceals information which may assist a criminal investigation or the prosecution of an offender, the maximum penalty prescribed is 2 years imprisonment under section 316 Crimes Act 1900 (NSW). This only applies in respect to information concerning a “serious indictable offence”. A serious indictable offence is an offence that carries at least a maximum of 5 years imprisonment.

In NSW, it is a crime to possess a prohibited drug. Having it in your system while driving is a crime, but this does not amount to a serious indictable offence. Dangerous driving occasioning death or grievous bodily harm is considered a serious indictable offence.

Here is more on the crime of being an accessory after the fact to a crime in NSW.