Things nobody tells you about drug and alcohol testing

Drug and alcohol impairment is an important safety issue especially in high-risk industries such as mining.

As an employer, you have a duty under health and safety legislation to ensure that employees do not endanger their own or others’ safety at work through the effects of alcohol or illicit drugs.

Your duty may require you to implement a drug and alcohol policy or even implement drug and alcohol testing.

A positive test by an employee outside your policy is a serious matter. Usually this will warrant disciplinary action or even summary dismissal.

But hey, not so quick!

Did you know that  a ‘false positive’ reading for opiates may occur after eating poppy seeds, or prescribed medications may result in a higher than usual reading.

If you dismiss without giving the employee a reasonable opportunity to explain, you could be sued for unfair dismissal if either of these explains the reading.

And did you know:

  1. Courts have held that drug addiction falls within the definition of ‘disability’, which is a protected attribute under anti-discrimination legislation (except in NSW by legislation). This can also be extended to alcoholism.
  2. People of certain races or with a medical condition may show a higher drug or alcohol reading than others who consume the same amount of alcohol or other drugs.
  3. If a person is embarrassed about the testing due to their gender, race or religion, it may be discriminatory to insist on them taking the test.

If you act on a positive drug or alcohol test without taking these factors into account, you could breach anti-discrimination laws, and be sued.

Avoiding these risks is simple, however.  You just need to write suitable procedures into your policy, and act on them.

Contact me today to discuss legal strategies to help you employ with confidence in your business.

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