The duty on employers to ensure the health and safety of workers includes mitigating the risks associated with drug and alcohol use, which are especially pronounced in industries such as construction, mining and transport. As such, employers in these industries are entitled to carry out workplace drug and alcohol testing to manage these risks. However, drug and alcohol testing is invasive and employers need to exercise caution when carrying out such testing.

A recent decision of the Fair Work Commission illustrates that it is generally lawful to direct an employee to be tested and the particular method of testing, but it also serves as a useful reminder to employers that any testing program should be managed carefully and in a sensible and sensitive manner.

Background

This case involved a sales employee at a hardware store who declined her employer’s request to undergo a drug test by means of a urine sample. The employee objected to being tested in this manner on the basis that she considered it ‘invasive’ and because of a personal medical condition – a urinary tract infection. The employee proposed that she provide an oral swab as an alternative (which was one of the testing methods available under the employer’s drug and alcohol policy).

However, in its evidence to the Commission, the testing agency the employer had engaged to carry out the testing said that:

• the employee had not specified the nature of her condition at the relevant time;
• it had told the employee that a saliva test would not be possible; and
• it advised the employee that if she refused to provide a urine sample for testing it would be deemed a refusal to undergo testing.

Crucially, the employee maintained her refusal to provide a urine sample for testing after she had recovered from the urinary tract infection which she claimed prevented her from undergoing testing.

The employee was dismissed on the grounds she had failed to comply with her employer’s lawful and reasonable direction to provide a urine sample for random drug and alcohol testing. The employee challenged her dismissal in the Commission.

Decision

 While the Commission accepted the employee’s objection to being tested was not based on any concern about passing the drug and alcohol test, it found that it was unreasonable for her to maintain her refusal to undertake the test after the point at which she had recovered from the urinary tract infection (which was the claimed basis for refusing to provide a urine sample).

The Commission ultimately found that the employee’s dismissal was justified on the basis that the employee could not insist upon her preferred method of testing in circumstances where she was lawfully required to comply with the method chosen by her employer (which was lawful and reasonable) and in circumstances where the medical condition was no longer relevant.

Key takeaways

This decision confirms that employers must be able to implement measures to manage the risks associated with drug and alcohol use by workers, and this includes implementing a robust drug and alcohol testing program.

However, given the emphasis the Commission placed on the employee’s continued refusal to undertake the testing once her urinary tract infection had resolved, and the finding that this was unreasonable, the outcome may have been different had the employee’s medical condition not resolved but her employment had still been terminated notwithstanding.

Accordingly, while employers have a clear ability to direct workers to undertake drug testing, including by way of a urine sample, this should be exercised in a sensitive manner that takes into account an employee’s particular circumstances. This is because the reasonableness of any disciplinary action taken in response to an employee’s refusal to undergo testing will be assessed against the particular circumstances of the testing and the employee’s refusal to comply.

Chris Oliver, Director and Olivia Coleman, Paralegal