Can an employee refuse a workplace drug test?
By Brihony Tulloch
Drugs and alcohol in the workplace are becoming increasingly prevalent. According to the Alcohol and Drug Foundation (ADF), alcohol and drugs cost Australian workplaces an estimated $6 billion per year in lost productivity, while one in 10 employees say they have been affected by a co-worker’s misuse of alcohol.
The effects of drugs and alcohol, such as the symptoms of ‘getting high’, being drunk, coming down, withdrawal, aggression, depression, lack of safety awareness or even a hangover can affect a person’s ability to work safely and effectively.
Under health and safety legislation, employees have a responsibility to look after their own safety and that of their co-workers’ – so a drug and alcohol testing policy is often justified, especially in high-risk work, such as mining and construction.
But what can you do if workers refuse to be tested?
Legally speaking, if a worker refuses to undergo testing, you cannot force them to take a test against their will. This is assault and it could expose you to civil and criminal liability.
However, workers can be disciplined for refusing to be tested if their employment contract states that you have the right to test them.
Drug and alcohol policy
That’s why your drug and alcohol policy should clearly state that you have the right to test workers and outline the consequences of a refusal, e.g. disciplinary action, such as a warning or even dismissal.
When developing a testing clause in your drug and alcohol policy, be clear on:
- Why you are conducting testing.
- What type of testing method has been chosen and why.
- Who will do the testing.
- Who will be tested.
- How often testing will be carried out, e.g. annually, randomly or as a pre-condition of employment.
- When additional testing may be undertaken, e.g. following an incident in the workplace.
- What the testing process will be.
- The blood alcohol limits that will be in place, e.g. 0.02 blood alcohol level.
- What disciplinary measures you will take if:
- workers refuse to undergo testing; or
- workers test positive for drugs or exceed alcohol limits.
But if you are introducing a testing clause to your policy, ensure you discuss this with unions, workers and health and safety representatives.
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