Employers looking to implement workplace drug and alcohol testing must ensure that the process is completely transparent to avoid possible litigation - especially when it comes to sacking workers who test positive to prohibited substances, says Harmers Workplace Lawyers partner, Jamie Robinson.
"If clarity over the fairness and impartiality of the tests is in any way suspect, then businesses run the risk of employees alleging they have been unfairly dismissed," Robinson says.
"An employee should be able to perceive the testing to be necessary, fair and impartial."
Employers will need to be especially cautious, Robinson says, with elements of the Federal Government's revised industrial relations legislation - including new unfair dismissal laws - expected to be rolled out by July.
Drug and alcohol testing and similar employer practices are bound to come under extra scrutiny, he says.
"The new legislation will likely re-open avenues for employees to claim unfair dismissal."
Employers, he says, can legitimately apply prohibited-substance testing, in many cases, to ensure they meet their OHS obligations, but will need to act with increasing diligence in the upcoming months. They must, for example, have a transparent process in place that is adequately communicated to workers.
When adopting a drug and alcohol testing policy, Robinson says, employers should:
"Employers must... ensure that the reasons behind the testing are explained, and that those requests seem fair and reasonable in so far as they relate to a person's ability to work safely rather than encroach unnecessarily on a personís private life";
ensure that testing is impartial and objective, preferably with an external person or agency conducting the tests;
allow employees the option to have their samples tested by their own representative in addition to official testers;
ensure there is a mutual understanding between themselves and employees as to what constitutes a "positive" reading, and that the consequences are unequivocal and preordained; and
ensure employees are adequately trained in all aspects of OHS, including drug and alcohol policies and testing.
"Hang" testing policy off OHS
According to Deacons partner, Martin Osborne, employers that don't "hang" their drug and alcohol testing policy off safety risk exposing themselves to accusations of:
unlawfully acquiring personal information - the test could reveal a medical condition or addiction that does not necessarily correlate with substance-related impairment; and
giving employees an unlawful and unreasonable direction - where little justification is provided for undertaking the tests.
Employers, he says, would be prudent to make it clear that the purpose of the testing is to ensure the safety of workers - which is easy to justify where the use of machinery or plant is involved.
However, Osborne notes that drug and alcohol tests are increasingly seen as "legitimate safety measures for all businesses".
Some organisations, he says, apply the same standards and testing requirements to both their white- and blue-collar workers, so as to avoid division between staff and to allow the policy to be more efficiently applied.
Osbourne recommends that punishment for positive tests should be determined on a case-by-case basis, and that a refusal to take a test should be treated and dealt with as a failure to adhere to a lawful and reasonable direction, as opposed to an automatic positive result.
Right to test established in court
In a recent case in the Australian Industrial Relations Commission, a full bench upheld a Rio Tinto subsidiary's right to continue urine testing its workers, despite CFMEU protestations that the tests were "undignified and offensive", and that alternative (saliva) testing methods were available.
The employer was required by law to have an alcohol and other drugs policy, the bench found, and the urine tests allowed it to comprehensively comply with the statutory duty imposed on it by the OHS Act.
Further, saliva screening tests had proved to be less reliable than urine testing, the bench found.
If you have some HR news to share or would like to suggest a topic for an article, click here to email the editor.