Posted on: Jun 22, 2012
The case law is relatively clear regarding drug and alcohol policies and it’s important that you get all elements right or it won’t be worth the paper it’s written on!
In general, it is legitimate for an employer to introduce a drug and alcohol policy to the workplace, provided that the policy:
a) Is not inconsistent with an employment agreement; and
b) Is supported by the need to comply with statutory health and safety obligations; and
c) Is both lawful and reasonable; and
d) Does not impose random/suspicionless testing on all employees; and
e) Is dynamic and has procedures in place for ongoing review as scientific advances are made (such as less invasive means of testing);
f) Sets out clearly what the testing protocols will be, who will carry out the testing, and the consequences of failing a test.
However, there are some important elements that need to be covered by the policy and before one is introduced. These include:
- Consultation – It is crucial that the policy is introduced only after consulting as appropriate with employees potentially affected.
- Random testing – The policy cannot require random, suspicionless testing for all employees. Only those in safety-sensitive areas may be subjected to random, suspicionless testing. There is currently no definition of what constitutes “safety sensitive”, however it is for the employer to decide in consultation with the employees/unions in their workplace.
- Reasonable cause testing – As for testing employees who work outside “safety-sensitive” areas, an employer may only do so if there is “reasonable cause” to do so, ie post accident/incident or reasonable cause to suspect impairment by the observation of symptoms.
- Pre-employment testing – There are no issues with drug and alcohol testing pre employment.
- Testing protocols – The policy must set out the testing protocols, who will conduct the testing, and the consequences of failing a test. It is not enough to include generic statements such as “testing will be done by an outside party” or “a positive result will result in disciplinary action”.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.