The primary purpose of an employer drug and alcohol policy is to manage the risks that can occur in a workplace due to employee drug and alcohol use. The key word is “risks” because it is the risks that create the legal right to intrude on employee privacy and conduct drug and alcohol testing. Employee drug testing programs can include blanket testing or random testing or both.
Blanket testing means all employees are tested within a predetermined timeframe. If random testing is included, it must occur with a justifiable regularity and that leads into the question of procedural fairness. If random testing does not occur with regularity then it is quite possible there will be suspicions that the random testing is being used for other purposes besides minimising risks. In other words, the employer motives for testing come under suspicion.1
A well developed drug and alcohol policy is one that clearly provides for procedural fairness. This doesn’t mean the employees are told when the testing will take place. It means the testing policy is justified by the occupational health and safety risks, has a clear purpose relative to risks, has been communicated to employees, and clearly delineates the consequences of testing positive. The goal is to protect the safety of the employee and coworker.
Portable drug testing products like the Lion SD 400 have made mobile and random drug testing programs quick and easy to implement. Unfortunately there are documented cases in which some employers have tried to use their drug and alcohol testing procedures as a punitive tool. For example, the supervisor may decide he wants to terminate an employer but for some reason cannot justify the termination. Instead he decides to randomly drug test the employee frequently in order to harass and intimidate. The hope is that the employee will quit of his own volition.
An employer cannot use drug and alcohol policy and procedures for certain purposes. They include the following:
- To gain information about personal medical conditions
- To reduce the workforce by creating terminations for cause
- To harass
- To discriminate
- To force people into drug or alcohol treatment
- To embarrass employees
- To intimidate employees
In unfair dismissal cases, the judge is going to evaluate employer actions to determine if the employee knew the company drug and alcohol testing policy, whether the employee did test positive for drugs or alcohol and whether procedural fairness was used.2 An employer who used the drug and alcohol policy as a way to punish employees or even just to harass someone the supervisor doesn’t like is justifiable cause for formal complaint being filed by the employee.
The blanket and random testing policy and procedures must be tailored to fit the workplace needs, but just as importantly is the fact they must be fairly applied. This applies at the employee and department levels too. You cannot frequently test a whole department on a random basis if the potential risks and hazards of employee drug and alcohol use have not been identified. This prevents any employer from using the drug and alcohol testing procedures as a substitute for good management practices.
Mediscreen at http://mediscreen.net.au/index.php?mod=services can provide invaluable assistance to any employer that needs to refine its drug and alcohol testing policies and procedures. Given the complexity of developing lawsuit and complaint free drug and alcohol screening policies, it is advisable to obtain outside review.
References
1. FindLaw Australia. (2011, February). Can An Employer Conduct Random Drug and Alcohol Testing. Retrieved March 16, 2011, from FindLaw Australia: http://www.findlaw.com.au/faqs/1599/can-an-employer-conduct-random-drug-and-alcohol-te.aspx
2. Goodwin, E. (2006). Testing Times – drugs, alcohol and the workplace. Law Institute Journal , 80 (12), 42.
