The Department of Immigration and Border Protection hit the news this week when it was revealed that it had randomly drug tested thousands of its public servants. Nearly a quarter of the workforce were tested for illicit drugs or blood alcohol content of greater than 0.02, in an attempt to ensure the ‘integrity, professionalism and safety’ of the staff and the general public.
While drug testing is nothing new, the union operating in the public sector vocally opposed the tests. Why? Because a large proportion of the Department’s staff work in offices, yet they weren’t spared from the intrusive testing process usually reserved only for operational staff.
The invasive nature of drug testing, not to mention its expense, means that it should only be performed in the right circumstances. While you can lawfully direct an employee to be tested, this power should be used sparingly, otherwise you risk ruining the precarious balance of trust between you and your employees.
Can I test my employees for drugs?
Work health and safety obligations automatically apply to employees even in the absence of specific policies or contractual terms preventing employees from being under the influence of drugs while at work. This means that because employees have an inherent duty to perform their duties in a safe manner, taking drugs is likely already a breach of their obligations under work health and safety law.
However, many employers want to be able to explicitly check whether an employee is under the influence of drugs while at work. Drug testing is particularly invasive to the individual in question, and should only be utilised where the employer believes there is a genuine risk to health and safety, whether to that of the employee, his/her colleagues, or the general public.
This is why drug testing is most commonly used in dangerous industries such as mines, construction sites or long-distance driving. That’s not to say you can’t test an office worker – but you have to have strong reasons for doing so on the basis of health or safety. It all comes back down to that word which constantly recurs in employment relations: reasonableness.
Remember that as an employer, you have no say in what employees do outside of work. You can only take disciplinary action if the illicit drugs they are taking in their own personal time presents a health or safety risk when they are working.
Drug testing policies
Do you have a drug testing policy in place? If you do engage in drug testing in your workplace, or are even contemplating the possibility that you may do so in the future, it is vital that you have a drug testing policy which outlines your employees’ obligations and expectations.
While every business is different, a drug testing policy should at the least specify when, why and how the tests will be completed, including whether it will be random, following an incident, or upon suspicion. The policy should also outline the potential consequences if the drug tests show positive results for illicit substances, and should put in place certain safeguards to prevent reliance on false positives. It is also recommended that you establish support mechanisms such as rehabilitation or counselling to assist employees through the process.
Policies may only be relied upon when employees are aware of them. This means that you must clearly communicate any new or amended policies to your staff, whether by presenting them with a hard copy or providing electronic access.
It is recommended that you direct your employees to sign the policy or an attached form to confirm they have read, understood and agree to comply with the policy content. While this isn’t a legal requirement, it goes a long way towards proving that the employee was aware of the policy’s existence and therefore was bound by it.
Once you have a policy in place, this sets guidelines for both you and your employees in how to act in certain situations. In regards to drug testing, knowing in advance what to do is fundamental to maintaining an effective, safe and professional workplace when engaging in such processes.
The invasive nature of drug testing means it should be treated with the utmost caution. While employers have the power to order drug testing in accordance with their WHS obligations, such power is accompanied by the responsibility to apply it in a sensible, serious and sensitive manner.
For more information on drug testing employees or establishing policies, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.