Drugs and alcohol at work - safety issues for employers

The use of drugs and alcohol by employees at work or an employee attending work under the influence of drugs or alcohol, can have serious consequences for the safety of other employees as well as for the employee affected.

Drugs and alcohol affect a person's concentration, physical co-ordination, alertness and judgment. These symptoms present significant safety issues for employers, especially when combined with the use of machinery, safety equipment and driving.

Statistics from the National Occupational Health and Safety Commission suggest one quarter of accidents and 15% - 30% of all fatal accidents at work involve employees affected by alcohol. Where one in five persons experience problems with alcohol, the issue of drug and alcohol use at the workplace is significant.

OH&S Obligations

Under the Occupational Health and Safety Act 2000 an employer must ensure the health and safety of all employees and persons at their place of work.

The Occupational Health and Safety Regulation 2001 requires an employer to consult with staff and have in place risk management practices. An employer must identify hazards, assess the risk arising from the hazard, eliminate or control the risk and review those risk management practices.

The risks associated with drug and alcohol use at the workplace should be addressed by all employers. An assessment of the risks should occur and procedures or policies be put in place to eliminate or control any risks identified.

The obligation to ensure a safe workplace does not rest with employers alone, particularly in the context of drug and alcohol use.

Under the OHS Act 2000 an employee, while at work, must take reasonable care for the health and safety of people at their place of work. An employee who attends work under the influence of drugs and alcohol will arguably not be taking reasonable care for the health and safety of others.

A Drug and Alcohol Policy

There are sound reasons for introducing a workplace drug and alcohol policy. Introducing a drug and alcohol policy is an important first step to eliminate and control the risk of employees working whilst affected by drugs and alcohol.

Drug and alcohol policies need to be carefully considered and implemented. A drug and alcohol policy should:

• Apply to all employees. It should apply to managers just as it would apply to those who operate machinery.

• Be clear and transparent, stating at the outset what is prohibited and what behaviour is expected of employees. This needs to take account of the personal use of required medications.

• Be consistent with the objective to ensure the health and safety of all persons at an employer's place of work.

• Clearly state the consequences of a breach of the policy.

• Be flexible enough to permit the employer to manage each situation on its merits.

• Consider the provision of an employee assistance programme to those suspected of alcohol and drug dependency.

Before implementing the policy, an employer should embark on a process of consultation consistent with its consultation obligations under OHS Act 2000. Staff should be educated about the policy. Failure to consult and educate employees about the policy will undermine the policy and lead to dispute, quite apart from representing a breach of the OHS legislation.

Drug and Alcohol Testing

There are other matters that need to be considered when implementing a drug and alcohol policy, such as testing and privacy. Ordinarily, if testing is not to occur randomly or systematically, an employer will need to rely on evidence that a worker is affected by drugs or alcohol which can be directly perceived by sight, taste or smell.

In some industries or with particular work, an employer may choose to periodically test employees before work or undertake random testing. Testing may also be "for reason" when an employer suspects an employee is affected by drugs and alcohol.

An employer needs to consider its rationale for testing. While testing may be accepted for workers who work in mines or with dangerous equipment, testing office staff every day before work will lead to dispute.

Further, an employer must choose the form of testing it will implement: urine, blood, breath or saliva. An employer needs to understand what each test discloses. Certain tests may produce different analysis. For example, a test may indicate the presence of a drug, but not indicate whether the employee is actually affected or impaired by the detected substance. The drug may be in the employee's system but was used by the employee while on leave.

Privacy is another issue that needs to be addressed by employers. Most employees and their representatives will raise concern about the intrusive nature of testing and seek to maintain the confidentiality of results. A regime needs to be established and agreed to by staff that gives confidence that results will be protected and not freely available.

Conclusion

Drug and alcohol use presents a real safety issue for employers. As part of an employer's ordinary consultation and risk management processes, employers should be addressing the issue and implementing steps to eliminate or control the risk. Employers should consider the introduction of a drug and alcohol policy which also addresses testing employees.

In our second part to this bulletin on drugs and alcohol, we review industrial disputes and unfair dismissal cases where drug and alcohol policies have been reviewed by industrial commissions. These recent decisions provide valuable insights for employers.