While employee drinking and drug use during work hours has obvious implications for workplace safety, productivity, and reputation – consideration also needs to be given to the effects of consumption that occurs away from the workplace and out of work hours.
A number of recent Court and Tribunal decisions have provided employers with greater clarity on what their drug and alcohol policies can contain and some of the risks to enforceability and reliability.
Purpose and application
A drug and alcohol policy needs to have a clearly articulated and detailed purpose to be reliable and enforceable. It is worth noting that the ‘purpose’ of a drug and alcohol policy can dictate what employers are able to do in an effort to achieve their policy objectives – so getting it right is critical!
The primary and most widely accepted reason for having a drug and alcohol policy is to assist the employer in providing a safe and productive workplace. If the employer intends to use the drug and alcohol policy to minimise on-site impairment or if it also wishes to detect systematic drug and alcohol use that negatively impacts work performance, the purpose and application will need to reflect this. The privacy of the employee and their right to do as they wish outside of work will be given significant weighting if the employer has not articulated the reasonableness of testing that may detect ‘out of hours’ personal use.
The application clause of a drug and alcohol policy should extend to conduct outside of the workplace and outside of core work hours where there is any reasonable chance that it will have an impact on the employer’s ability to provide a safe and productive workplace. Where employees carry out work at other work sites, it is important to ensure that the employer’s Drug and Alcohol Policy does not apply to the exception of a client’s Drug and Alcohol Policy where the latter imposes a higher standard.
Testing methods and disciplinary action
A drug and alcohol policy should articulate which method(s) of testing will apply in the workplace. The three most common methods of testing currently are breath analysis, saliva sample and urine sample. Employers in high risk industries – such as mining, construction and transport – typically favour urine testing for drug detection even though it is the most intrusive of the three, because it can detect drug usage over a longer time period than the other tests.
A drug and alcohol policy can provide employers with the right to use any of these detection methods (see for example, Mr Raymond Briggs v AWH Pty Ltd). However, if an employee refuses to complete the test and it is not viewed as reasonable in the circumstances, the employer may not be able to enforce the discipline actions contained in the policy.
In assessing what form of testing is reasonable, a Court or Tribunal will typically look at –
- the history of workplace testing,
- the industry of the employer,
- the Australian Standards and presence limits being applied to the test,
- the risk to health and safety,
- the circumstances that led to the test being requested and
- the employee’s drug and alcohol test history in the workplace.
Another factor which will influence the type of testing that is considered reasonable is the circumstances that led to the testing. For example –
- is the testing targeted at an employee suspected of drug and alcohol use?
- is it a random or blanket workplace test? or
- is it periodic testing of an employee who has previously had a drug and/or alcohol breach?
If an employer is concerned a particular type of testing will not be considered reasonable, they should consider specifying which tests may apply in specific circumstances and getting employee and, where relevant and feasible, union consent.
Employers should also ensure that the disciplinary action for particular breaches is reasonable – i.e. ‘that the punishment fits the crime’. It is not necessarily sufficient to say that a workplace takes a ‘zero tolerance’ approach to drugs and alcohol breaches if it is not reasonable in the circumstances. As an example, standards expected of a kitchen hand might be different to those of a long-distance heavy vehicle driver.
Employer sanctioned alcohol consumption
A particular area of concern that isn’t addressed in many drug and alcohol policies is employer sanctioned alcohol consumption. Typically this is in the form of alcohol being supplied, served and/or knowingly consumed by employees at a work-related event.
With greater health and safety ‘duty of care’ requirements, we recommend that employer drug and alcohol policies also consider alcohol being served at client meetings and other third-party events attended by employees. Excessive alcohol consumption can have considerable negative consequences for not only employee and client relationships, but also corporate image and liability.
Where it is possible that alcohol will be consumed by employees in any sort of employer sanctioned event, the employer’s Drug and Alcohol Policy should contain specific provisions that deal with responsible consumption, appropriate behaviour and restrictions on unsafe practices, such as driving and operating machinery.
An unintentional breach of a drug and alcohol policy by an employer can lead to it being rendered unenforceable. Management discretion should be included in all clauses so that a technical breach does not materially impact the reliability of the policy.
Implementation and document management
The manner in which a drug and alcohol policy is introduced and managed can be as important as the content of the policy itself. Employers should give consideration to how the policy will be rolled-out, how employee understanding and acceptance will be recorded, how relevant unions will be notified of the policy (for example, if required under an EBA) and how the document will be managed – including version control to ensure that employees in the same workplace are not covered by different policies. This is particularly important if copies of the policy are provided with induction materials, initial contracts of employment and/or in employee handbooks.
