Drug and alcohol testing has become an increasingly important workplace issue in recent years, with many businesses recognising that their workers’ private lives may fall within their domain of responsibility.

Obviously, drug or alcohol-impaired workers have a negative impact on workplace safety, culture and productivity. In safety-sensitive contexts, implementing a testing regime is fundamental to a business fulfilling its legal obligation to keep its workers safe from harm, and several industries, such as rail, are specifically regulated in this regard.

Many employers who haven’t had testing policies face obstacles when introducing a regime. They may be constrained by enterprise agreements that limit management’s prerogatives in terms of the type of testing, testing threshold or the consequences of a breach.

A recent case resulted in a ruling that means that, if an enterprise agreement is silent on drug and alcohol testing, employers won’t be forced to wait until the agreement expires to negotiate a testing procedure with the relevant union.

Saliva vs urine

Drug and alcohol policies are typically subjected to scrutiny in the unfair dismissal jurisdiction of the Fair Work Commission (FWC), as well as in enterprise agreement disputes. While the FWC has recognised an employer’s right to have a testing regime, this right is balanced against the employees’ right to privacy in their personal lives and a requirement that a policy is ‘reasonable’.

A string of cases last year revealed a growing consensus at the FWC that saliva testing is preferred over urine testing because it more effectively detects impairment.

Despite this trend, if an employer has a policy and is unconstrained by an industrial agreement, recent case law suggests the FWC may refrain from interfering with a management decision to test for, and take action against, drug use generally. For example, a recent full bench ruling found that an employer was entitled to enforce a zero-tolerance policy for cannabis because there is no scientific test for impairment.

In its assessment of the reasonableness of a policy or dismissal, the FWC has also taken into account the reputational risks to a business arising from a positive drug test. However, it remains to be seen whether the FWC will take a different approach to the reasonableness of testing in workplaces which aren’t safety critical.

Compliance advice

So what should employers be doing about drug and alcohol testing?

There’s a very real risk that a business that operates dangerous machinery or is in a safety critical industry will fall short of meeting its occupational health and safety obligations if it doesn’t have a strong testing regime in place. Employers should:

• Be aware of any constraints under relevant enterprise agreements or awards in relation to testing.
• Formulate a reasonable testing regime that is compliant with any restraints, taking into account the workplace’s safety requirements.
• Clearly communicate the policy to relevant employees and unions and consult with the relevant OHS committees.

This article is an edited version. The full article was first published in the June 2015 issue of HRMonthly magazine as ‘Testing times’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.