Can I Ask an Employee to Participate in Workplace Drug Testing?

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Table of Contents

• Workplace Drug Testing From an Employee Perspective
• Why do Employers Use Workplace Drug Testing? 
• Implementing Workplace Drug Testing
• Refusing Workplace Drug Testing
• Key Takeaways 
• Frequently Asked Questions

As an employer, you must create a safe working environment for your employees. As such, you may consider implementing a drug and alcohol testing aspect to your Occupational Health and Safety Policy. However, you may be unaware of the legal and practical issues that can arise from having such a policy. To help you understand your limitations as an employer, this article will take you through some key issues that might arise when asking an employee to participate in workplace drug testing.

Workplace Drug Testing From an Employee Perspective

You may offer an employee a job that they accept before they are fully aware of any WDT policy in place. At that point, you will likely hand the new employee an employment agreement and staff handbook to read over, sign and return. If properly drafted, the employment agreement will state that the employee agrees to be bound by all staff policies as amended from time to time. Within the employee handbook, the candidate may find a reference to WDT as being applied at the employer’s discretion. At that point, the employee faces a dilemma – any questions the employee asks regarding the employer’s use of WDT could give the impression that the candidate is a drug user. Further, failure to inquire as to the nature of the WDT program may deprive the candidate of important details that may affect their employment at a later stage.

This is why the law places checks and balances on WDT. In essence, just because you adopt a WDT does not mean the law concludes you have acted fairly or reasonably by relying on it to justify decisions that affect employees. 

If you fire an employee for failing a WDT, would that employee succeed in an ‘unfair dismissal’ proceeding under the Fair Work Act 2009 (Cth)? In determining any such application, Fair Work Australia will need to consider whether the dismissal was “harsh, unjust or unreasonable”. 

Why do Employers Use Workplace Drug Testing? 

All employers in Australia are required to provide a safe working environment for their employees. As drug use can create an unsafe workspace, you should consider addressing this in your staff policies. 

However, case law has held that it is not the employer’s role to involve themselves in law enforcement or supervision over their employees’ private lives. Accordingly, a business must justify any WDT program on proper grounds, for example: 

• the integrity of the workplace; 
• Workplace Health and Safety; and 
• productivity.

Case law has upheld the first two grounds as being fair and reasonable for prison workers (which would logically extend to law enforcement officers) and in industries responsible for public safety (such as aviation, transport and maritime services). Employees and employers in the latter industries may be subject to legislation such as the Building Code 2013 which mandates WDT.

Implementing Workplace Drug Testing

While you must have a justifiable reason to implement WDT, you must also have parameters in your drug and alcohol testing policy to ensure it is appropriate. Some key points you may wish to include in your policy include:

• when the drug test can occur e.g., if it is random or to occur following weekends;
• the type of drug test that will be taken e.g., a saliva or urine sample;
• what drugs will be tested for; and
• how the results will be used, including how you will respond to a positive test result.

Having clear WDT parameters will ensure your employees feel comfortable with and support your WDT policy. What Happens if an Employee Tests Positive?

Your workplace policy should outline what happens if an employee tests positive on a WDT. You should inform the employee immediately if they test positive and allow them to defend themselves. You may also decide to provide the employee with access to counselling and later follow up with more frequent tests. It is not usually appropriate to dismiss an employee for testing positive on their first warning. Instead, you should monitor for consistent use and later decide if that warrants termination.

Refusing Workplace Drug Testing

An employee may decline to take a WDT. However, your policy should specify the consequences including the extent of disciplinary action if an employee refuses. Refusal to participate in WDT may later constitute grounds for dismissal. 

Key Takeaways 

You may consider implementing drug and alcohol testing as part of your Occupational Health and Safety Policy. Some key things to consider when implementing such testing in your workplace include:

• if a WDT program can be justified on proper grounds;
• how you will implement WDT; and
• what the consequences of failing WDT involve. 

If you need assistance implementing WDT in your workplace, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions