Drugs are becoming an increasingly problematic part of the workforce. So what can be done if you suspect an employee is under the influence?
What can be done about an employee that arrives at work in a state where they are not able to work, or it is not desirable they commence work? A drug-affected employee is a risk to the health and safety of customers, members of the public and even themselves.
Policies in place
It is reasonable for employers to implement policies protecting their employees, including drug testing. The Fair Work Commission and its predecessors have repeatedly permitted employers to introduce testing, be it breath testing, urine testing or saliva testing.
Policy should include details of how and when testing will take place, and should be well-known to all employees, who should be reminded at regular intervals such as team or toolbox meetings.
But there are some concerns with drug testing, including:
• Some tests detect past illicit drugs use, not current use that could impact work;
• Drug tests do not test impairment. Impairment can also come from withdrawal of the drug;
• Most workplace drugs tests detect illicit substances, where more people would be likely to suffer from alcohol abuse;
• Many perceive drugs tests to be an invasion of privacy.
Employees are likely to be engaged in serious misconduct if they undertake willful and deliberate behaviour which involved being intoxicated at work. An employee is deemed to be intoxicated if their employee’s faculties are so impaired they cannot be trusted to undertake their duties. Following proper process, an employee can be terminated.
If the site is unionised, the Union wish to participate in the process. The Union may want to represent the worker who has been asked to participate in a test or accused of misconduct.
What if the employee arrives and appears affected?
Firstly, don’t let them commence work. If they have commenced work, direct them to cease work. Meet with them privately and advise them of what appears to be the issue. If you have a workplace policy that directs the use of an onsite tool (such as a swab test or breath test) it may then be appropriate to send them to a local doctor to be properly tested.
Once the results come back then a formal disciplinary procedure can begin, and depending upon the seriousness of the breach, termination may be the outcome.
Methods of testing
There are a range of breathalysers, saliva drug tests, surface drug test urine drug tests and synthetic cannabis urine tests, that are commercially available at reasonable cost.
In a recent decision of the Fair Work Commission, the tribunal discussed appropriate methods. In CFMEU v Port Kembla Coal Terminal Limited, the Fair Work Commission reviewed the methods of urine samples and saliva testing.
Random drug testing inevitably involves a degree of intrusion by an employer into the private lives of its employees. While neither method is foolproof, the evidence indicates oral fluid testing will generally identify employees who have recently consumed a drugs and are therefore likely to be impaired. Urine testing will identify whether an employee has taken a drugs in the preceding days or even weeks including times when there is no serious risk they will still be impaired when they attend for work.
Remember, it must be reasonable for the employer to bring a policy into place. Random drug testing may not be appropriate in an office environment, whereas it will, in all likelihood, be accepted in the mining industry.
What if the employee refuses?
If an employee refuses to undergo drug testing where the company policy expressly requires an employee to comply, it could be deemed the employee has failed to follow a lawful and reasonable command, and the employee may be dismissed.
In Sydney Harbour Ferries v Toms, the Fair Work Commission originally decided the employee had been unfairly dismissed. The employee had smoked a marijuana cigarette the day before he was called in as cover for another ferry master who was off sick. He did not refuse the shift or indicate prior to the shift he may be in breach of the employer’s drugs and alcohol policy. The employee was called upon to operate a ferry and he collided with a pylon, which injured a passenger. The investigation did not find a connection between the drugs use and the collision. The Full Bench ultimately concluded the employee had seriously disobeyed the employer’s policy.
Employers need to ensure their contracts include reasonable terms for drug testing and that policies support drug testing for work, health and safety reasons.