Your rights: The legalities of drug testing
April 09, 2007
By Rani Amaranathan of DLA Phillips Fox
Q. I manage a worksite with a number of shift workers. I have had problems lately with staff turning up to work who seem to be under the influence of drugs. Someone else I know had an employee who caused an accident at his work site last week because he was under the influence of drugs. I would like to introduce random drug testing for all staff but the supervisor says I can't do that. Can you tell me what an employer's rights are to drug test its employees?
A. Drug testing is often seen as an invasion of privacy so there are specific rules about when you can drug test, what sort of drug testing you can carry out and the process to follow. There are usually no problems with introducing a policy of drug testing as a pre-employment check or if the employer has a 'reasonable suspicion' an employee is attending work under the influence of drugs and this has caused an accident or a 'near miss'.
Random drug testing is more problematic. You can only introduce random drug testing for staff who work in 'safety sensitive areas'. Usually this means there must be a close connection between performing the duties of the particular employee's job under the influence of drugs/alcohol and operational safety.
I don't know enough about the sort of work done at your worksite to know whether you have any staff working in 'safety sensitive areas'. If you do want to introduce drug testing then you need employee consent to do so.
You need to include the right to drug test in each employee's employment agreement (or in a policy that the employment agreement says the employee must comply with).
If the employee refuses to consent to random drug testing, this may be grounds for disciplinary action against the employee but you cannot force the employee to undergo drug testing. Even if you decide not to introduce a drug testing policy, you can introduce a drug and alcohol policy that could help prevent people attending work under the influence of drugs/alcohol.
You could also use a policy to explain the consequences of drugs/alcohol at work. For example, your policy could state that drugs or alcohol are not permitted on your premises. Also, that employees are not permitted to attend work under the influence of drugs or alcohol and disciplinary action, including dismissal, might result if they do so.
If you want to introduce a drug testing policy, the policy should explain the reasons for the policy, when testing will be carried out, the procedure for consent to testing, the consequences of refusing consent, the type of testing (breath/urine/blood) and the possibility of medical review of test results.
Testing should be carried out by a reliable external agency.
Drug testing of employees is problematic because it involves balancing employees' rights to privacy against safety issues. Your rights depend on the nature of your workplace and the particular jobs carried out at your workplace.
If you are considering introducing a drug testing policy, I suggest you seek specific advice about your rights from an employment lawyer or other expert.
* Rani Amaranathan is a solicitor in the employment team of transtasman law firm, DLA Phillips Fox