IR Insights: Drug and Alcohol Testing

When can you request it?

Many of us enjoy a regular drink with family or friends in social situations, others of us perhaps like to have a cheeky wine on a school night, and sadly some people party a bit harder with drugs or alcohol to the point it starts to impact performance at work.

Absolutely no judgement here from us – but there is a fine line between being a social drinker, to arriving at work in an unfit state. So, what do you do if you notice that one of your employees has arrived at work and you suspect they are drunk or otherwise under the influence?

Duty of care

Firstly, you have a duty of care as an employer to ensure the employee you suspect of being under the influence is safe, and others around them are also safe from harm. If you assess the employee is not fit to be at work (or they are not safe to be around others), ensure you organise a safe way for the employee to get home. But can you legally ask an employee to undertake a Drug or Alcohol Test?

In both Australia and New Zealand, employers that want to implement a drug/alcohol testing program can do so, providing there has been some form of assessment as to why this is necessary, and ensuring this is comprehensively documented in a Drug and Alcohol Policy. Additionally in New Zealand, drug and alcohol testing must also be included within the Individual Employment Agreements.

We all expect that high-risk industries of mining, aviation, construction etc, have a comprehensive Drug and Alcohol Policy in place, and to be performing some form of regular and random drug and alcohol testing.

So, what sorts of matters should be covered in a Drug and Alcohol Policy?

We suggest that your policy include:

• Why it is reasonable for the company to request or perform drug/alcohol testing (noting that it is not necessarily reasonable to do testing in an office-based work environment)

• Circumstances where a test will be mandatory e.g. Workplace Accident

• How and when testing is performed (regular, random, both, client site requirement)

• Types of substances that will be tested

• Consequences/disciplinary action that may be taken in circumstances where an employee refuses to be tested

• Consequences/disciplinary action in the event of a positive test result

• If there will be any opportunity for a secondary test if the first test produced a positive test result

• How the test data will be stored and recorded

If you don’t have a policy, or the policy is silent when it comes to testing, what are your rights?

Well sure, you can ask the employee to be tested however the employee doesn’t have to agree to be tested. There is also a risk that any move to terminate on a positive drug test result could result in an Unfair Dismissal (Fair Work) or Personal Grievances (ERA) claim.

You are still able to hold a discussion with the employee when they are fit to return to work. Keep your conversation factual, be curious, and then determine what the next steps should be. Typically, this conversation may run along the lines of:

1. Thank the employee for their time

2. Ask them how they are feeling now

3. Call out your observations, without any blame. e.g. When you arrived at work the other day, I noticed that you were:

   • Slurring your words

   • Your pupils were dilated

   • had poor hand eye coordination

   • struggled to stand or walk straight

   • you were asleep

   • had an unusual smell, much like that of alcohol

   • were dishevelled in your uniform

   • driving a vehicle erratically

4. Let the employee know if other people at the workplace also made some of the same observations had as you did

5. Ask the employee what is going on, what can they recall about that day

6. Ask the employee if they are taking any prescription medications that may have affected them or may present like ‘being under the influence’

After this conversation there are many pathways to what the next steps may be. This is the point where you would contact Streamline HR for support.

Real world Example – leading with compassion

We had an employee arrive to work at the wrong work location, in the wrong uniform, parts of the uniform inside out, and they were observed on CCTV footage stumbling down the hallway banging into the walls. The work they usually perform wasn’t necessarily risky, but they were not in any state to remain at work. We did have a comprehensive Drug and Alcohol Policy. The employee was too intoxicated to be directed to attend a doctor for testing.

We spoke to the employee on return to work the next day. At this meeting we discovered that the employee’s brother had recently passed away, his marriage was on the verge of breakdown, and he was drinking very heavily each night. He was also taking prescription sleeping medications, which also made him very drowsy for an early morning shift. He said it was highly likely that he was under the influence of drugs and alcohol at work.

We could have terminated him on this admission. But we didn’t. This employee was a long-term, reliable and up to this point, a strong performer. He agreed to take personal time off and to attend drug and alcohol rehabilitation. He returned a changed man.

Addiction and mental health matters are debilitating - please ensure any policies or practices you have in place can refer employees to these services should they require additional support.

Contact Streamline HR if you would like any support in preparing a Drug and Alcohol Policy.