Generally, an employer may only ask employees and other workers to agree to alcohol or drugs tests if this is a condition of their appointment and in the employment agreement or workplace policies.
Using drugs or alcohol can lead to employee impairment while at work. Poor concentration, carelessness, risk-taking behaviour and errors in judgement can occur. Alcohol and drug abuse not only affects work performance and productivity, but also results in higher rates of injuries, fatalities and absenteeism.
Where possible employers should work proactively with employees on policies and processes relating to the management of the effects of alcohol and drugs in the workplace. Policies and processes are often more effective when these are mainly focused on prevention and protection (minimising the risks) rather than punishment.
Under law both employers and employees have a duty to ensure that the workplace is safe.
An employer should provide employees with the highest level of protection from risks as is reasonably practicable. A risk includes dangerous behaviour resulting from drug or alcohol use. Employees have a duty to take reasonable care for their own and others’ safety. Employees must comply with any reasonable policy or procedure relating to health and safety, including a policy on alcohol and drugs.
In safety sensitive workplaces pre-employment testing can be used by employers to show that they are serious about managing the alcohol and drug risks within the workplace. Stating in their job vacancy advertisements that there will be pre-employment testing can help to make it clear that they are serious about managing the risks and help to make sure that potential employees are aware of this from the start.
Where pre-employment testing is being used it is a good idea for employers to wait until the test results have been completed before making an offer of employment, this means there can be no argument that there is an employment relationship in place. In other words there should be a clean drug test result before a job offer is made rather than making a clean drug test a condition of a job offer which has been made and accepted.
Generally, an employer may only require employees and other workers to submit to alcohol or drugs tests if this is a condition of their appointment and recorded in the employment agreement or other document.
Employees have to follow all legal and reasonable requests from their employer. Whether or not it is reasonable for an employer to require an employee to undertake a drug test depends on a variety of different factors. It can mean balancing two factors, eg drug testing may be necessary to protect the safety of employees but may also be viewed as an unreasonable intrusion into the privacy of employees. Testing for alcohol or drugs is much more difficult if it isn’t in the employment agreement.
Employers thinking about drug testing employees should seek legal advice.
Each case will be different but the following are examples of things to take into account.
Drug testing may be reasonable if it is done with a view to protecting the safety of employees or the general public, for example:
Testing a specific employee for a specific purpose may be more reasonable than random ‘suspicion-less’ testing of all employees.
A specific purpose may be where the employee:
Drug testing may infringe the rights of an employee which will make drug testing less reasonable:
The policy should set out clearly the procedure to be followed in the event of a positive test result. This must involve discussion of the results with the employee, and may involve having the sample retested. That procedure will depend on the nature of the industry or work activity, and the health and safety, or reputational, risks in the situation.
A positive test result does not automatically mean that a drug has impaired that employee’s performance while at work. However, a positive test is one of the facts that an employer can take into account to determine whether, on balance, there are reasonable grounds for believing that the employee is guilty of misconduct.
Every process that the employer follows must be fair and they must have good reasons both to test and also to take action.
An example of fair process might be that, before deciding if there is ‘reasonable cause’ to test, the employer would consider: