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Tuesday, 23 July 2013

Case Study - Will Your Drug and Alcohol Policy Stand Up in Court?

Dsaliva testrug and alcohol testing policies that follow industry and Australian standards are more likely to be considered reasonable - and therefore enforceable - than those that depart from standard practice. If a policy departs from standard practice the employer should be able to provide reasons for this departure according to employment Mills Oakley lawyer Erin Rice. Key issues to consider when drafting drug and alcohol testing policies, revealed in Rice’s webcast for hrdaily include:
  • What type of testing is most appropriate - for example, a urine test or a saliva test
  • What disciplinary actions are appropriate once a breach of policy is established
  • The purpose of the regime - is the policy intended only to catch workers who are under the influence of a substance during work, or also to act as a vehicle for deterring and monitoring drug and alcohol use?
  • Drug and alcohol testing has become a widely accepted method for employers to meet safety obligations, especially in high-risk industries, but the level of intrusion into an employee's private life can be contentious.
  Recent Case Earlier this year, a worker was dismissed after he refused to submit to a random urine test - even though he had no objections to a saliva test. The worker, an employee of storage and logistics company AWH, lodged an unfair dismissal claim. He said he had refused his employer's directive on the grounds that its method of testing was not consistent with its policy's aim, which was to detect impairment. The full bench noted that the relative benefits of saliva versus urine testing were still under debate. Much of this debate hinges on the level of intrusiveness of the two tests. Employers and unions have generally objected to the urine test on the basis that not only does the testing procedure involve a higher level of embarrassment for the employee, but it is also more intrusive as to what it uncovers. Urine testing can detect drugs taken by employees up to seven days before the test, and in the case of cannabis, can show use up to a month prior to testing. It accordingly does not provide direct evidence of an employee's impairment at the time of the test. A urine test may not detect cannabis smoked in the four hours leading up to the test. In contrast, a saliva test generally only shows drug use up to 12 hours before the test, and is much more likely to pick up cannabis use immediately prior to the test. This more limited time frame means that it does not infringe on an employee's private life and in particular an employee's decision to use drugs outside of work hours, to the same extent a urine test does. The worker's objection centred on his view that testing should be limited to detecting impairment. The full bench, however, disagreed. The full bench noted that it had previously been accepted that impairment is not the only legitimate aim of a drug and alcohol testing policy.  It is a valid aim of a policy to detect drug use, even where detection does not provide direct evidence of impairment, provided it is relevant to managing the risk. Ultimately, the full bench chose not to determine which testing method was preferable, but only whether the direction to take the test was reasonable. It found that for a directive to be reasonable it did not have to be the most preferable or most appropriate course of action. Instead it is necessary to look at the surrounding circumstances, including common practices within the industry, in order to determine whether the instruction was reasonable. The full bench found the employer's policy adopted the relevant Australian Standard for urine testing and used the same cut-off level for the presence of drugs. The policy also foresaw situations where a positive result might not indicate discernible impairment, and contained disciplinary consequences other than dismissal, such as being allowed to return to work but not being permitted to operate machinery. The dismissal was upheld.
  • The case shows that in drafting drug and alcohol policies, it can be helpful to mention that the purpose of the policy is not only to test for impairment, but also to allow the company to monitor drug and alcohol consumption for the purposes of meeting its safety obligations more broadly.
Source Enquire about Barringtons Drugs and Alcohol in the Workplace Training here. Blayne Webb, Director, Barringtons
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