Drug and alcohol testing in the workplace: what you need to know

Workplace drug and alcohol testing is becoming more common across Australia, particularly in industries where safety is a top priority. In fact, some industries and occupational groups are covered by legislation that indirectly regulates the use of alcohol and drugs in the workplace. Some industries, such as mining, prohibit workers from working while being affected by drugs and alcohol.

Whether you’re an employer looking to implement a policy or an employee wondering about your rights in relation to workplace drug and alcohol testing, here’s everything you need to know.

Duty of care under the Work Health and Safety Act 2011 (Qld)

Employers’ duty of care

Employers have a duty of care to provide a safe working environment under various pieces of legislation. In Queensland, under the Work Health and Safety Act 2011 (Qld) (the WHS Act), a person conducting a business or undertaking (PCBU):

“must ensure so far as reasonably practicable the health and safety of – (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking.”

Irrespective of the industry you work in, your employer owes you a duty of care to provide a safe working environment.

Employees’ duty of care

Under section 28 of the WHS Act, a worker has a duty to:

• take reasonable care of their own safety;
• take reasonable care that their actions do not adversely affect the health and safety of other persons;
• comply with any reasonable instruction by the person conducting the business;
• co-operate with any reasonable policy or procedure of the person conducting the business relating to health or safety at the workplace.

If an employee is under the influence of drugs or alcohol, it can put not only themselves, but their co-workers and the public at risk. This is particularly important in high-risk industries such as construction and mining, transport and logistics and healthcare.

In office jobs, drug or alcohol use can lead to reduced productivity, poor decision-making and workplace accidents.

Types of drug and alcohol testing and common screening

There are several types of workplace drug and alcohol testing depending on the industry and company policy.

Pre-employment testing

This is testing conducted before a person is hired or offered employment. It’s usually a condition of employment, and the purpose is to ensure that prospective employees are not engaging in drug use that could affect their ability to perform the work safely.

Random testing

This testing is conducted without warning, hence the name ‘random testing’. There is generally no rhyme or reason as to who is selected in this testing.

Post-incident testing

This testing is conducted after a workplace accident has occurred or after a near miss to determine whether drugs or alcohol contributed.

Reasonable suspicion testing

This testing occurs when an employer has reasonable grounds to believe that an employee is under the influence of drugs or alcohol at work.

Return-to-work testing

This testing is undertaken when an employee is returning to work after a drug-related or alcohol-related issue; for example, after a failed test, rehabilitation or suspension.

Employers will generally (this is not an exhaustive list) screen for alcohol, cannabis (THC), amphetamines and methamphetamines, cocaine, opiates or benzodiazepines. Testing methods vary, but they will often be urine, saliva, breath or blood tests.

Your rights as an employee required to participate in drug and alcohol testing

If your workplace requires drug and alcohol testing, your employer should have a clear policy outlining:

• when and how tests will be conducted;
• what substances are being tested for;
• what happens if you test positive, or non-negative (non-negative means that the initial test detected the presence of something in the sample that might be a drug – prescription, over the counter or illicit);
• your rights to challenge the results.

Can I refuse a workplace drug or alcohol test?

If your workplace requires drug and alcohol testing, refusing a test can be considered:

• a breach of your employment contract (because your employment is subject to your compliance with your employer’s policies and procedures);
• a breach of workplace policy; or
• a breach of your employer’s code of conduct. (A code of conduct is a set of guidelines that outline the behaviours and standards your employer expects you to follow.)

Refusal of a test could lead to disciplinary action of some kind, which could include, but is not limited to, suspension or termination of employment.

What happens if I test positive or non-negative?

A positive result does not necessarily mean summary dismissal. Often, employers will conduct a secondary test to confirm results. Employers may offer a support program or counselling or rehabilitation to address any substance abuse issues.

In jobs where safety is an inherent concern, a positive test could lead to immediate suspension or termination of employment.

Can I challenge workplace drug and alcohol testing results?

There is no set answer for this question. It is wholly dependent upon any drug and alcohol policy of your employer. In a legal sense, there is often no avenue to challenge a workplace drug and alcohol test result.

Get help from an employment lawyer

Workplace drug and alcohol testing is about safety, fairness and responsibility. It is not only an employer’s duty to ensure the health and safety of their employees, but it is also an obligation of an employee to ensure their actions do not impact the health and safety of others.

If your workplace requires drug and alcohol testing and you’ve tested positive, resulting in disciplinary action or even dismissal, you should seek legal advice immediately about your options to dispute:

• the testing process;
• the workplace policy;
• the test results;
• the penalty imposed; or
• any other issues related to drug and alcohol testing at work.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au