YOUR RIGHTS: THE LEGALITIES OF DRUG TESTING

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