Drug testing employees? Make sure you’ve got a policy in place

You suspect one of your staff members is regularly turning up to work affected by their drug intake. Or there’s been an incident at work, and an investigation has uncovered that the staff member involved was impaired by alcohol at the time. What do you do?

For many SMEs, their initial reaction will be to discipline and perhaps dismiss the employee. But before you go ahead and make any rash decisions, you need to understand exactly where you stand legally if you want to minimise the chance that an unfair dismissal or other relevant claim is brought against you.

The case of the Sydney ferry driver

One of the most notorious unfair dismissal cases in Australia involving drug and alcohol use was that of a Sydney ferry captain who tested positive to cannabis in 2013, after being called in to work on a day off to cover an unexpected absence. After initially being dismissed by Harbour City Ferries based on its zero-tolerance policy, in April 2014 a Fair Work Commission (FWC) decision ordered that he be reinstated, primarily on the basis that there was no evidence that he was impaired to perform his work at the time of the incident.

Unsurprisingly, Harbour City Ferries appealed that decision and in April 2015, the full bench of the Fair Work Commission overturned the reinstatement decision, bolstering the employer’s rights to enforce internal zero-tolerance policies, and indicating that the core issue was the disobedience by a senior employee of a well-known and important company policy.

What does this mean for employers?

Essentially, Harbour City Ferries zero tolerance drug and alcohol policy, and its ability to prove it had been well communicated to all staff, came up trumps. It was regarded as of more general importance than any other consideration, including the rights of the ferry captain.

So, if you need to deal with a drug or alcohol issue in your workplace, before you do anything else make sure you:

• • Have a specific policy in place that states clear parameters for your tolerance levels (such as zero-tolerance, or a number of warnings prior to dismissal). If you do not have a policy in place, you should not shoot from the hip and instantly sack an employee on the assumption that they are impaired for work;
• • Understand the laws specific to your state about drug and alcohol testing, and the implications for staff who refuse to be tested;
• • Check that your policy states: how and when will tests be carried out; what the consequences are for positive tests or a breach of the policy (for example, what are grounds for transfer demotion or dismissal, and how many warnings will be given before discipline is imposed?); and details of any employee assistance programs you have in place to support staff, or at minimum, be prepared to have a list of services to which you can refer them for help;
• • Have communicated the policy to all staff, and can provide evidence of these communications; and
• • Refer to the policy in all employment contracts, including the consequences for employees when the policy is breached. This is particularly important if you want to enforce a ‘zero tolerance’ policy.

If you don’t have a formal policy in place, you may find yourself limited in how you can discipline staff who test positive for drugs and alcohol.

However, developing and implementing a detailed and comprehensive policy and a drug and alcohol testing program may not be practical for all SMEs. In this case, develop a very simple policy that allows you to request that, in circumstances where repeated absence or noticeable impairment while at work has arisen, employees must provide evidence of their fitness to work from their own doctor.

If you’d like some more guidance on how to develop your own drug and alcohol policy, state-based work safety organisations have resources available online, as does Safework Australia.

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