The Fair Work Commission recently caught employers by surprise when it reinstated an employee who had been dismissed when he tested positive to marijuana use after crashing a ferry into a Sydney Harbour ferry wharf.
In dismissing the employee, the employer relied on its zero tolerance approach to drug and alcohol use in the workplace. However, the key factor influencing the Commission’s decision was the absence of any evidence establishing a link between the employee’s positive drug test and the ferry accident. There was no proof that the employee was “impaired” at the time of the accident, meaning the employer could not rely on its zero tolerance approach.
It is important to consider the issue of drug use versus impairment from the perspective of key stakeholders in employee relations and human resources.
For employers, addressing drug and alcohol use in the workplace is all about managing risk. The risk of an impaired employee causing or suffering from a workplace accident, the risk to other employees and/or members of the public, the risk of property damage and the risk of reputational damage to the employer’s business. The key issue here is whether the employee is fit for work regardless of their drug and/or alcohol consumption.
Clinical and Forensic Psychologist, Dr. Tamsin Short of Eastern Drug and Alcohol Service, specialises in alcohol and other drugs. Tamsin believes it is crucial for employers to consider the possible reasons why employees are using, and potentially abusing, alcohol and other drugs. Tamsin suggests a crucial element in creating a sound Drug and Alcohol Policy is to identify possible work related factors that may cause employees to turn to drugs, such as workplace culture, pressure to perform and setting unrealistic and unreasonable deadlines.
The Australian Drug Detection Agency
Any consideration of an employer’s drug and alcohol policy must involve a consideration of the methods the employer intends to implement in testing its employees. According to Bryce Dick, Managing Director of the Australian Drug Detection Agency, urinalysis accounts for around 85% of Australian workplace drug testing, with saliva (oral fluid) testing accounting for the remaining 12- 15%. Bryce considers the key differences between urine and oral testing include the following:
- oral fluid tests are confined to a very tight detection window and are dependent on a number of factors including the strength of the drug, route of administration, metabolism, pattern of drug use and the collection device used. Based on some of these factors, drug use can be detected from 1-24 hours after consumption;
- oral fluid will not detect rebound fatigue or “the hangover effect”. This is extremely important when you are looking at the likes of methamphetamine use in or outside the workplace;
- oral fluid screening can be inconsistent and relies on lab confirmation. At this stage it can become costly for employers and means results are not immediately available;
- oral fluid screening returns far more “false positives” when on-site testing is conducted and the subsequent on-site screening result is forwarded to the lab for confirmation; and
- cheating an oral fluid test is possible as some liquids will interfere with the device.
Unions have long argued against employee drug testing in favour of protecting employee privacy. The debate centres on the validity of drug testing in the workplace as a reasonable means for increasing employee safety. The unions submit that while neither urine nor oral testing methods test directly for impairment, a method that tests for recent consumption only (i.e. oral testing) is more likely to identify someone who is impaired. The argument follows that any method of testing that goes beyond testing impairment (and detects historical drug usage) is not aimed at ensuring employee safety and is an invasion of privacy.
So what should you do?
- Consider your work health & safety risk It is critical that WH&S managers and HR professionals assess their workplace to identify realistic health and safety risks arising/resulting from the presence of drug and alcohol affected workers on-site. We recommend a WHS specialist undertakes a WHS Audit which will identify the risk factors that exist in your workplace as well as cultural and procedural workplace practices that may exacerbate drug and alcohol problems among employees.
- Review your workplace cultureDo you have a workplace culture that encourages the consumption of alcohol at client events or social functions? Are work deadlines and performance criteria realistic or are your employees expected to function for extended and excessive periods of time?These are just some of the questions WH&S Managers and HR professionals should be asking themselves before implementing any workplace policies and procedures. Without conducting this analysis the value of any workplace policy and the extent to which any employer can rely upon their policies in implementing disciplinary action will be significantly undermined.
- Broad policy approach Employers should take a holistic approach to considering possible employee impairments. For example, a severely overworked employee suffering from significant sleep deprivation may be just as mentally and physically impaired as an employee affected by drugs and alcohol. The implementation of a Fitness for Work Policy in conjunction with a Drug and Alcohol Policy, addresses the broader spectrum of potential causes of impairment that may impede an employee’s ability to function in the workplace. A WHS specialist can advise and assist in drafting comprehensive policies and procedures addressing all employee impairment issues.
Action Plan :
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