If you are an Australian employer then you are probably familiar with the federal Disability Discrimination Act 1992 (DDA). This act was passed to protect the rights of people with disabilities in education, housing, and in the purchase of goods and services. It has been the subject of hot debates over the years as to its application to those with drug and alcohol addictions. Human rights advocates have pushed to include addiction as a disability, whilst employers have expressed concern they will be forced to hire or retain addicts who jeopardise workplace safety.
This is certainly not an easy topic to discuss because passions run high as proven by public discussions. In 2003 an amendment named the Disability Discrimination Amendment Bill 2003 was proposed that would allow discrimination against drug addicts in employment practices. The amendment did not proceed after extensive public discourse. Over the years, there have been many attempts to define drug dependence as a type of disability. Though NSW and federal anti-discrimination laws make it unlawful to discriminate on grounds of disability, there is case law that has defined the relationship of addiction, disability and legal employment discrimination.1
Stating the Case
The first Australian case that addressed the issue of addiction as a disability was actually first heard in November 2000. The plaintiff Mr. Marsden was addicted to an opioid and was a member of a private club. There were incidents related to his addiction and he was ejected from the club. Mr. Marsden claimed his addiction was a disability and that he had been discriminated against when his club membership was revoked. The complaint was first filed with the Human Rights and Equal Opportunity Commission (HREOC) which denied his claim, so it went to Federal Court. In summary, the Federal Court inferred, by remanding the case back to the HREOC, that drug dependency may invoke the protection of anti-discrimination law in some cases.1
In New South Wales, a 2002 case involved a man, Mr. Carr, who worked for the city council as a labourer. He was a recovering heroin addict and was taking methadone. The employer embarrassed him by displaying his jars of methadone in front of co-workers and telling other staff members about Mr. Carr’s dependence. He was then unceremoniously transferred. He brought an action under the NSW Anti-Discrimination Act 1977 claiming his drug addiction was a disability. The city council claimed that he did exhibit the behaviours that constitute a disability. The Tribunal rejected this line of argument stating that a person able to lead a normal life whilst taking treatment may still be considered disabled despite no outward signs.2
Concerns that the cases were being wrongly interpreted to mean that employers cannot terminate an employee addicted to illicit drugs led to the federal Disability Discrimination Amendment Bill 2003 mentioned previously. This bill allows lawful discrimination against those clearly addicted to illegal substances in a number of areas including employment, club memberships, sports and more. Public debate included arguments for and against the passage of the amendment with the main concern being it ignored human rights and allowed discrimination against drug users. In addition, this Amendment was seen as purely punitive and not in line with harm minimisation strategies, so it failed to proceed. It excluded people on methadone or buprenorphine or who are serapositive. Though it did not proceed, it was landmark legislation that started a still ongoing public discussion.3
However, in response to the Marsden decision the NSW Government did pass a law allowing discrimination in the place of employment only against a person who is addicted to a prohibited drug. However, a person being effectively treated and able to complete job functions is still protected by the disability laws.
Addiction Does Not Bestow Rights
Sociologists and the medical community have determined that drug addiction is a brain disorder that may impair brain and physical function, but whilst in treatment it is the compulsion that has to be overcome. The difficulty lies in determining the level of impairment and if the compulsion or dependence actually has been overcome. If the medical community or the government cannot define this measurement then how are employers expected to do so?
The Human Rights Commission makes it clear that some cases of addiction will be covered by the DDA, but that the addiction does not bestow rights in itself. Discrimination must be proven and is intricately connected to the job requirements, unjustifiable hardship and a reasonableness element. Is it reasonable to expect the person to manage a job given an addiction or treatment course? Also, addiction to legal or illegal substances may lead to continual decline in physical and mental capacity meaning discrimination would apply as it would in any case where the impairment affected the ability to do the job. Substance use in itself is not a disability according to the federal law.4
Interestingly there is legal recognition of addiction through the Social Security system. According to the Social Security Act, a person can collect a Disability Support Pension for dependence on alcohol or drugs if that dependence causes long work absences. In 2009 there were 143,000 treatments approved for people with substance addictions, but the agency will not say how many people in total receive pensions for addiction.5
It is easy to be confused at this point as to how the law will interpret each case. It is not possible in limited space to explore all the case details. It is clear the employer should continue to focus on two things as the laws unfold: 1) workplace safety and adherence to policies and procedures, and 2) the employee’s ability to be productive and accurately manage the duties job required. By focusing on job performance and adherence to zero tolerance drug and alcohol policies, an employer does not have to be overly concerned with the question of whether an addicted employee or one in treatment is disabled. The random drug and alcohol testing program will tell the story as to whether a drug free workplace is being maintained.
Mediscreen (http://mediscreen.net.au/) consultants can provide service and guidance to employers interested in establishing a quality alcohol and drug testing program. State-of-the-art testing equipment like the saliva drug test provides the tools needed to maintain a drug free workplace. Call Mediscreen today on (+61) 1300 79 70 40
References
1. Service, J. G. (2003). Drug Dependency Discrimination. Retrieved July 3, 2011, from Federation of Community Legal Centres: http://bit.ly/pSZcMB
2. Ibid
3. Drugs and the Law – History of drug laws. (2011). Retrieved July 5, 2011, from Find Legal Answers: http://www.legalanswers.sl.nsw.gov.au/guides/drugs/history.cfm
4. Australian Human Rights Commission. (2011). Are drug addiction and substance use covered by the DDA? Retrieved July 2, 2011, from Australian Human Rights Commission: http://www.hreoc.gov.au/disability_rights/faq/who_is_protected_/who_is_protected_.html#drug
5. Gardner, N. (2011, May 15). Fat people, drug and alcohol addicts paid by government to stay home. Retrieved June 30, 2011, from The Telegraph.com.au: http://www.dailytelegraph.com.au/news/fat-people-addicts-paid-by-government-to-stay-at-home/story-e6freuy9-1226055955717
