Friday, 9 March, 2018
Michael Starkey, Associate
Rohan Burn, Graduate Associate
With the Alcohol and Drug Foundation reporting that alcohol and drug misuse costs Australian workplaces approximately $6 billion per year in lost productivity, it is understandable that many employers will seek to implement a framework for dealing with drug and alcohol usage in the workplace. Ensuring that employees are not impaired by the effects or after-effects of drug and alcohol use is an important part of driving a high-performance culture, meeting an organisation’s responsibilities regarding the health and safety of employees, protecting an organisation’s reputation, and encouraging employee wellbeing. However, introducing a drug and alcohol policy into the workplace is often not an easy task. For any organisation, determining where to draw the line on drug and alcohol use (for example, whether the policy should be “zero-tolerance” or adopt a different approach) will depend on a number of factors, including the work health and safety context in which the organisation operates (“high-risk” or “low-risk”), and the nature of the work undertaken in the organisation. Just as importantly, when enforcing drug and alcohol policies, employers also need to consider a number of legal risks that may arise, including under anti-discrimination and unfair dismissal laws.
When it comes to drug and alcohol policies, what does a best practice approach look like?
While any employer is likely to receive some pushback when seeking to implement a drug and alcohol policy, it is possible to mitigate this by adopting an approach focused on obtaining the “buy-in” of the workforce. The rationale for the policy should be clearly communicated, and it may be appropriate to develop the terms of the policy in consultation with the workforce. Further, best practice policies tend to take a holistic approach, rather than simply a focus on punitive outcomes. A holistic approach includes an emphasis on providing support, counselling, and education, rather than seeking to “catch out” workers. In addition, it recognises the reality that many employees take prescription medications, and will encourage responsible use and disclosure. Moreover, the policy should seek to build an understanding of the impact of alcohol or drug misuse in the workplace, as well as the likely disciplinary consequences. This is important from both a cultural and legal perspective. Policies framed in this way are more likely to be accepted by a workforce, and more likely to be looked at favourably by courts and tribunals.
What is a zero-tolerance drug and alcohol policy?
In most cases, the term zero-tolerance is used to refer to a drug and alcohol policy which sets “cut-off” levels, and stipulates that testing which reveals a breach of the policy will result in disciplinary action. The levels specified in a policy will often depend on the nature of the work carried out in the organisation. For example, in high-risk industries such as manufacturing and mining, where the potential safety ramifications of a breach of the policy are significant, a zero-tolerance policy is likely to be the most appropriate response. Conversely, in industries which depend on entertaining and interacting with client (for example, because employees may reasonably be expected to consume some alcohol while entertaining clients) policies might be tailored to cover how employees are expected to behave in situations where alcohol is being consumed, while prohibiting other conduct outright, such as illegal drug use. Ultimately, employers have a right to set what they regard as reasonable standards for drug and alcohol use within and affecting their workplaces, and to enforce those standards.
While, on their face, zero-tolerance policies prohibit certain conduct, they also serve the function of educating employees on their responsibilities and the organisation’s behavioural expectations. They should detail the method of testing to be used, and outline the steps involved in any disciplinary process. Where a breach of a drug and alcohol policy is established, any disciplinary outcome needs to align with the terms of the policy and take into account all the surrounding circumstances of the employee in question. This will maximise the likelihood of an employer being in a position to defend the decision in the event that an employee pursues legal action.
What is the role of the Australian Standards?
In a number of recent Fair Work Commission (“FWC”) decisions, the FWC has indicated that reference to the relevant Australian Standards can be an appropriate way to communicate and implement a drug and alcohol policy effectively. The FWC has also commented that while compliance with the Australian Standards is not mandatory, it can enhance the integrity of a drug and alcohol policy. The Australian Standards provide guidance on the processes required for drug testing to be performed in a valid and reliable manner. In one case, an employer implemented a zero-tolerance policy in which it defined the expression “free from the presence of other drugs whilst at work” as a reference to not having a reading in excess of the relevant Australian Standard cut-off level. The effect of linking it to the Standard was that the organisation communicated clearly to employees that they were not permitted to work with any concentration of drugs to the extent that this could be detected by the processes set out in the Standard.
What method of testing should be used?
There is a separate Australian Standard for urine, saliva, and alcohol testing, and employers need to consider which method of drug testing is appropriate for the circumstances of their business. Historically, the preference of unions has been for saliva testing to be used, on the basis that a mouth-swab is more indicative of present levels of impairment, while a urine sample is more likely to detect historical drug use. However, recent decisions of the FWC have indicated that employers are able to utilise either or both methods of testing, provided adequate protections are implemented to protect the privacy of the employee being tested (for example, it may be inappropriate for a urine sample to be taken by an employee’s colleague). In one case, the FWC rejected the submission that urine testing is unnecessarily invasive because it has the potential to reveal information about an employee’s out-of-office conduct that an employer should not need to know or try to control.
How should disciplinary action for breaches of a drug and alcohol policy be managed?
Disciplinary action should be approached on a case-by-case basis. Just because a policy provides for termination of employment in particular circumstances, does not mean that termination will always be appropriate when those circumstances eventuate. Employers should take a broad approach and consider all the circumstances of the individual employee, including an employee’s record of service. For example, terminating the employment of an employee with a “clean” and long record of service for a minor breach of a drug and alcohol policy may give rise to a successful unfair dismissal claim on the basis that the dismissal was harsh or unjust if it is in a “low-risk” industry. Additionally, the circumstances of an employee’s drug or alcohol use should be considered, including whether this may be a result of an addiction. Where addiction is an issue, it may be more appropriate to approach drug and alcohol use as a “fitness for work”, rather than “misconduct” issue, although it is always advisable to seek legal advice in such circumstances, particularly around the safety aspects that may arise. In order to build a solid foundation on which to take disciplinary action in the right circumstances, employers should ensure that all employees receive adequate training on the relevant policy and understand what the organisation expects from them.
- Employers should tailor their drug and alcohol policies to their industry and workplace.
- Develop policies that set standards of expected behaviour, are focused on safety and wellbeing, and build a culture of compliance, not policies that only seek to punish.
- Consider referring to the relevant Australian Standard to bolster the integrity of your policy.
- Make your policy well known and ensure employees receive adequate training.
- Consider disciplinary action on a case-by-case basis, taking into account the circumstances of the employee involved.
PCS assists clients in policy development and review and conducts training for managers on these and other WHS issues.