Drug and Alcohol testing at work is again under question with conflicting decisions from the academics, professional testing authorities, lawyers, unions and employers. This is an important area for us to understand, particularly businesses employing drivers. We will review the detail in depth in the next ACAPMAg, however, this week’s HR Highlight will take a quick look at the issues.
Does privacy trump safety?
On one hand business seeks to randomly test employees in what can be considered safety-sensitive workplaces, while on the other, unions see random testing as “an invasion of a worker’s privacy”.
Drug tests, unlike alcohol testing, may not always be able to measure whether a person is “under the influence” at the time of the test but only detect past drug use although with the increasing incidence of designer drugs the potential could be quite different that’s to be determined.
But can we ever be sure when even the experts can’t always agree and the goal posts keep changing? We trust roadside testing by the police so why the differentiation it’s random and it’s drug and alcohol these days and one can’t refuse the test by claiming invasion of privacy.
Then there is the argument put by civil liberties organisations and others that random testing imposes privacy-invasive on a large number of people without any real proof that they are going to pose a threat to workplace safety!
The National Association of Testing Authorities, Australia (NATA) announced in July last year that it was withdrawing the provision of accreditation for on-site drug testing of oral fluid, citing a number of issues with oral fluid testing that it was unable to resolve. The decision gave cause for concern and left many in limbo as to where to go from here in initiating and implementing a company policy that could withstand challenges.
One of the arguments relied upon is that the employer would need to justify random drug and alcohol testing before it could introduce the policy into the workplace. So the term “random” became the live element.
Can commonsense prevail or is it a storm in a pee cup?
In Australia we continue to read of conflicting decisions, few if any of which are helpful to workplaces. It seems that no matter what policy you try to implement once the word “random” comes into the equation commonsense becomes a casualty, as it does in the choice of testing saliva or urine.
As recently as this month (March) a decision of the Fair Work Commission removed urine testing from a company’s national drug and alcohol policy under the enterprise agreements covering certain employees at container terminals.
The agreements each contain a provision which says : “the parties acknowledge that the company’s drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab (oral) testing”.
The Member said that for cannabis, using urine for the second test would, if a non-negative result was returned, provide no more information than using oral fluid for the second test. In this case there were two experts providing evidence for the unions and the company respectively.
So what now?
The debate will continue, and ACAPMA is closely mentioning it and will keep members informed. Watch out for the next issue of ACAPMAg which will explore drug and alcohol testing in more detail. What is clear is that under the law safety of workers and the general public must be paramount.
Drugs and alcohol in the workplace should never be condoned nor accepted. It’s just commonsense! What is unclear is how to effectively discharge our due diligence as businesses in this area, without running afoul of the law.
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HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals its free for members. ACAPMA membership is affordable at only $770 per year for a single site, which represents great value with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Learn more about ACAPMA membership here.