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Information of interest to our Clients and for the industry


The common problem with a positive drug and alcohol test which no one talks about

In light of October being Mental Health Awareness Month in New South Wales, we thought we’d shed some light on the often common reason as to why an employee may return a positive drug or alcohol result.

People use, and can become dependant on, drugs and alcohol for a number of reasons; enjoyment, to relax, inclusion within a group, curiosity, to minimise physical or psychological pain or as a coping or escape mechanism. And it’s important to note that 50% of people globally who are affected by substance abuse, also suffer from mental health disorders. But with the two being closely related, we are presented with a chicken and the egg type scenario; what came first?

Often when a person suffers with a mental health condition, they use substances to ease their symptoms temporarily. On the other hand, regular drug use can trigger the first symptoms of mental health illnesses, make symptoms worse or treatment less effective. Some people use substances because they believe that they will feel better in the short term, however it can actually leave them feeling worse, anxious, agitated, unmotivated or moody. And left untreated, both mental health issues and drug or alcohol addiction can get in the way of an individual’s ability to function at work, maintain relationships, handle difficult situations and sustain a functional and stable home life.

One in five Australian’s is currently experiencing a mental health condition equating to 20% of the country’s population.

So what should you do if a worker gets a positive result? As an Employer with a duty of care, the key is to ensure that you understand the driver behind the drug use, and explore it further to determine if something else may be a contributing factor. Did the worker have a big night out with their mate which is the reason for the positive result, or did they recently suffer a personal loss which they’re struggling to cope with?

It is not the role of the employer or manager to diagnose a possible substance or dependency problem, nor pass blame or immediately discipline… after all, you don’t know if a positive result has come from medication prescribed for a mental health condition, and disciplinary action may just make the situation worse for you and the worker. It is your role to identify if an employee is impaired, unable to do their job safely, and take the appropriate steps as per the organisation’s Drug and Alcohol Policy.

Among recent drinkers (2016) 1 in 6 (17.4%) put themselves or others at risk of harm while under the influence of alcohol in the last 12 months

So how should you support a worker with a positive result when you think there may be associated mental health issues?

  1. Employ a Drug and Alcohol Management Specialist to conduct an interview, provide guidance and make recommendations. Their expertise will ensure objectivity and legal compliance, as well as provide some reassurance to the worker. They will also be able to put together a tailored Drug and Alcohol Management Plan (DAMP) which will assess the worker’s physical, psychological and psycho-social state, and determine reasonable treatment and action moving forward.
  2. Provide opportunities for open communication and respond to their concerns compassionately. Ensure the worker feels heard, respect their privacy and confidentiality and take notes so that you can then take action.
  3. Determine what temporary changes can be made to the worker’s role or workplace to accommodate their physical and psychological needs. Do they need some time off, can they work from home, how can their workload be reduced?
  4. Provide support by offering contact details for community support groups, Employee Assistance Programs, GP or health care professional, online resources or other mental health or drug and alcohol support networks.
  5. Share your story if you’ve gone through something similar and you’re confident in sharing your experience. Be careful not to compare or say things like ‘I know what you’re going through’; simply show them that they are not alone on their journey.
  6. Let them know that they have your support in their recovery. The best treatment for co-occurring disorders is to treat them simultaneously which may mean the employee has a long road ahead of them. Let them know you’ll support them in any way you can from a work perspective. Remember – your role is to support the person be successful at work, not anywhere else.

Among recent drinkers (2016) 1 in 10 (9%) had injured themselves or someone else because of their drinking in their lifetime

When all is said and done, when mental health is concerned, the best approach is to be preventative rather than reactive. By recognising the symptoms of poor mental health and taking action, you will contribute to a positive health culture, and may prevent bigger issues such as drug and alcohol misuse at work from occurring. And if it does, if you understand the reason behind the substance abuse, you can choose the best way to respond. 

Be a proactive Employer by utilising a Drug and Alcohol Management Specialist who can assist you in identifying the risks. When addressing issues with educational understanding, the worker will be protected from further risk of deterioration, you’ll protect the business from potential unfair treatment claims, and you will retain a good employee with experience in their role.

Related reading:

You suspect a worker is under the influence, what’s next

What to do when an employee fails a drug test

You suspect a worker is under the influence of drugs or alcohol, what’s next?

62% of harmful drug and alcohol users in Australia are employed fulltime. Let that sink in… Are you a manager or supervisor who has direct reports? If so, there’s a good chance that one or multiple workers may arrive for work under the influence at some point. Have you ever suspected that this was the case, what did you do?

Did you know that you can conduct a reasonable concern interview?

In high risk industries workers under the influence of drugs or alcohol can be harmful not only to themselves but to others; 25% of workplace accidents involve drugs or alcohol, which costs Australian businesses $680 million annually in days lost.

Can your business afford to be part of that?

So when is it time to conduct a reasonable concern interview?

  1. When another employee approaches you with concerns that a co-worker may be under the influence of drugs or alcohol
  2. Or upon observation of an individual displaying unusual or unsafe behaviour, which has aroused suspicions of drug or alcohol use

As soon as you suspect an employee to be under the influence, it’s best to err on the side of caution. It’s better to be risk adverse, safety conscious and consistent in enforcing the company’s Drug and Alcohol Management Program, which may prevent safety incidents, save dollars and possibly lives.

Once all parties are present, follow this guide when conducting a reasonable concern interview:

  • Inform the worker that their appearance, work performance or behaviour is a cause for concern that they may be misusing drugs or alcohol in the workplace which is why they have been requested for the interview – refer them to the company’s Drug and Alcohol Management Program.
  • Address the terms of confidentiality and advise them that the information collected will be treated with the strictest confidence and that subject to the law, any information collected will only be divulged to relevant persons for the purposes of managing health and safety.
  • Request the worker sign a Consent Form following the explanation of privacy and confidentiality. If they refuse, they may be in breach of the firm’s Drug and Alcohol Management Program.
  • Seek an explanation from the worker to ascertain a reason for their appearance, unsatisfactory work performance or behaviour.
  • Seek the worker’s perspective on workplace factors contributing to the initial event of concern. If any workplace factors are raised they should be referred to relevant WHS or HR representatives.
  • The content of the interview must be recorded in detail a using Drug and Alcohol Interview Record.

Once the interview is complete, if you are satisfied with the explanation given by the worker and you are of the opinion that there is less than a reasonable concern of misuse, the worker should be thanked and cleared to go back to work. If however, you suspect with reasonable concern that the worker is under the influence of drugs or alcohol, in accordance with the company Drug and Alcohol Management Program, drug and alcohol testing should be undertaken, and they should not return to work until cleared.

Of course, none of this can be done unless you actually have a Drug and Alcohol Management Program in place which clearly outlines how you manage the risk of drug and alcohol misuse in the workplace. Read: The biggest pitfalls in workplace drug and alcohol policies

Ensure that your business is protected from drug and alcohol use in the workplace with drug and alcohol management advice and pre-employment and ongoing drug and alcohol screening.

What To Do When an Employee Fails a Drug Test

For many Australian businesses, particularly within the civil, construction and mining industries, random drug and alcohol testing is common and an accepted part of life at work. But what happens when an employee fails a drug test? It may seem like a fair and reasonable response to terminate an employee when they have intentionally put themselves and others at risk, but it’s rarely best practice; in fact it could land your business in hot water and result in a substantial legal risk.

So even though decreased productivity and absenteeism related to drug and alcohol use costs Australian businesses $5.2billion annually, employers must follow correct procedures when an employee’s screen receives a positive result. Here’s what to do:


1. Don’t make assumptions!

It might be easier said than done, but now is not the time to judge. Firstly, the result could be attributed to an over the counter or prescribed medication. And unless you know all the personal details of your employee’s life, you don’t know what they’re going through; if they are using drugs or alcohol, it could be as a tool to deal with a significant issue or personal problem.

2. Make sure the employee is safe at work

Employers have a duty of care to ensure that employees are safe, and not putting themselves or other people at risk. It is your responsibility to ensure that your worker complies to WHS practices if they have received a positive drug screen. This means ensuring they are not operating machinery, driving or doing any other work that requires a negative drug or alcohol result, in order to be completed safely. They should be stood down and not allowed back to work until they pass a drug screen. CAUTION: check whether they are entitled to be paid whilst stood down.

3. Notify the relevant people
Depending on your organisational structure, there will be a number of people who will need to be notified. This may include HR, the employee’s supervisor and the person in charge of workplace safety. It may also affect co-workers if the employee’s role needs to be changed temporarily. CAUTION: you need to afford the employee privacy so tread with caution and only provide necessary details to only those with a genuine need to know.

4. Do NOT terminate the employee

For many employers, disciplinary action or immediate termination may be the initial reaction to a positive drug screen. It’s important however to understand that there is a process involved, legally speaking, and that the employee is entitled to a fair process. Acting irrationally can often lead straight to an unfair dismissal or other claim against the business.

Take for example the case of Harbour City Ferries versus Toms; in 2013 Toms was asked to fill in for a colleague who had called in sick and crashed a ferry into a wharf. It was later discovered after a positive drug test, that Toms had smoked marijuana the night before. Because Harbour City Ferries had a zero-tolerance policy to drugs and alcohol, Toms employment was terminated. Due to the fact that he was not actually scheduled to work on the day of the incident, and various other mitigating factors, the Fair Work Commission agreed his dismissal was unfair and he was reinstated. However Harbour City Ferries then appealed the decision, focusing on the importance and legitimacy of the policy, and it was overturned.

So why bring it up? Because it presents a valuable lesson for employers… drug and alcohol policies and procedures should be tailored to the individual business and specific industry, taking health and safety obligations into consideration. And they must be enforceable and properly communicated to employees to ensure valuable time and money is not wasted!

5. Check the company’s Drug and Alcohol Policy, and follow it!

For the safety of workers and the business as a whole, a comprehensive Drug and Alcohol Policy must be in place, and a ‘zero-tolerance’ policy is not enough. It should be clear, detailed, consistent in its application and enforceable, and workers must be well educated on the policy, procedures and consequences. Read about the most Common Pitfalls of a Drug and Alcohol Policy to avoid being caught out.

6. Get help from the appropriate people

Once you realise that a worker has been using drugs or alcohol, it’s important to seek out the experts to understand what the employee is going through and why. This means consulting the person or business running your workforce health, or getting someone on board if you don’t have one. They will be able to provide advice, information, and support and, navigate you through any legislation.

7. Support the employee as best as possible
Once again, take the time to understand why the employee may have been under the influence of drugs or alcohol, and offer them as much support to get help as possible. Refer them to an Employee Assistance Program to support their mental wellbeing and provide coping strategies and resources, provide a Drug and Alcohol Management Plan and offer them phone numbers of helplines and online resources which may assist.

With 275 million people worldwide, aged between 15 and 64, using drugs at least once during 2016, and 62% of alcohol and drug users employed fulltime, it’s easy to jump to conclusions and act irrationally when an employee fails a drug test. But for the sake of the employee’s wellbeing, and the potential legal ramifications for your business, best practice is always to follow the correct procedures. Having the right policy in place, and following the correct procedures, will give you the level of protection you need.

The Latest Drug Trends from NDARC

Drug and alcohol use at work is becoming more prevalent than ever, with a staggering number of related workplace accidents and injury being recorded in Australia.

Not only do drugs and alcohol increase risk, but can contribute significantly to absenteeism, productivity and incidents, and potentially cost thousands of dollars in claims for the employer.

The National Drug and Alcohol Research Centre have released the latest drug trends from their 2018 findings. View them here: Illicit Drugs Reporting and Ecstasy and Related Drugs Reporting.

Unfairly Dismissed for Drunkeness at Work?

Have you heard about the Cannon versus Poultry Harvesting case?

Here’s a bit of background. Ms Cannon was employed by Poultry Harvesting and described her work as moving a large piece of machinery with an attached conveyor belt for the purpose of loading chickens onto trays. Once the chickens were loaded onto the trays, they would be put into trucks for delivery.

So what led to Ms Cannon being terminated and the ultimate unfair dismissal case?

It was night shift on Melbourne Cup Day and consuming “three or four glasses of wine” earlier in the day, Ms Cannon fell asleep on the job. With the job itself requiring two people to manage, and Ms Cannon sleeping, 50-60 chickens were consequently killed.

The boss was called in and found Ms Cannon passed out and smelling of alcohol. So what would you do? In this case the employer terminated her immediately, arguing her conduct created a serious health and safety risk. He also argued that there was a well-known company policy, which had a ‘zero-tolerance’ approach to drugs and alcohol in the workplace.

Unfortunately for the employer, the Fair Work Commission (FWC) disagreed and found the worker was dismissed unfairly and awarded the employee 6 weeks wages as compensation (nearly $7,000). This did not include the employer’s costs and stress of running the case.

Are you shaking your head yet? Are you asking, ‘how can someone turn up to work drunk, causing big financial burdens, and walk away with compensation’? The issue in this case is less about what the employee did, rather what he did NOT do.

Here’s where the employer went wrong…

The employer’s policy documents were too general and unclear

Commissioner Wilson found no substantive evidence that workers were bound to a ‘zero tolerance’ policy. He said the employer’s documents contained ‘general knowledge’ about drug and alcohol restrictions but did not make it clear what was expected, and when.

“While the evidence supports a finding on the balance of probabilities that [the worker] was aware that consumption of alcohol at work was not permitted, or that presenting for work in an intoxicated state would not be permitted, I am not able to find that [she] had been warned or was aware that consuming alcohol to any level prior to presenting for work was not permissible”, Commissioner Wilson.

The employer failed to investigate or verify the worker had consumed alcohol

Commissioner Wilson also found the employer did not have sufficient knowledge about the worker’s condition to find she was intoxicated, and took no informed or objective assessment of her condition before sacking her. In addition, the worker had not been provided with an opportunity to respond to the allegations, or to have a support person present.

Lack of training

It was unclear whether the worker was aware of or given access to the Policy and training on it.

Inconsistent application of policy and procedure

The Commission found that the policy was aimed at correcting problematic behaviour (e.g. testing, counselling), however, this was not offered to the worker. Further, the employer contradicted its own decision by allowing Ms Cannon to continue to work her shift, despite finding her unfit for work.

Key learnings for employers from this case:

  • This area of the law does not always pass the ‘logic test’ – it’s very complicated
  • A general policy must have a procedure behind it that clearly lays out what must happen and when, it is a real risk to your business otherwise
  • Doing an internal assessment of whether someone is affected is fraught with danger – get an independent expert to ‘properly’ assess intoxication (alcohol testing)
  • Train your people on your policy and document it!

Read the full case.

The biggest pitfalls in workplace drug and alcohol testing policies

The statistics on drugs and alcohol use in Australian workplaces are alarming – a staggering 25% of work accidents involve drugs or alcohol! It’s an important issue that needs to be managed, not only for the immediate health and safety of employees, but also to protect employers.

Take the Cannon versus Poultry Harvesting case study for example; an employee, who showed up drunk to her job at a chicken farm, fell asleep and approximately 50 chickens were killed as a result. Noticing her breath smelled of alcohol, she was reminded of the organisation’s ‘zero-tolerance’ policy and terminated immediately. The worker claimed ‘Unfair Dismissal’, to which the Fair Work Commission agreed, and was awarded nearly $7,000 in compensation.

How does that make you feel? Shocked?  Unfortunately, the reality is that the employer’s Drug and Alcohol Policy didn’t measure up to standards and was not consistently applied.

So how do we make sure this doesn’t happen to us? How can we protect our employees and ourselves in these situations?

The reality is that many employers want to keep people safe at work, prevent dangerous and costly workplace accidents and maintain a good brand reputation. But, despite these intentions, many will fail because their policies and procedures aren’t thorough, or their execution isn’t adequate.  Or even worse, their employees aren’t educated or aware of the policy.

So what are the most common pitfalls in drug and alcohol policies and procedures?

1. The half-baked approach

This is where a simple 1 – 2 paragraph policy exists, simply stating the attitude of the business towards the issue. Typically it states how the organisation ‘will not tolerate drugs or alcohol in the workplace’ or ‘has a zero tolerance approach to drugs and alcohol use’. That’s all there is, and it’s certainly not enough. The policy needs a detailed procedure to back it up, and a series of steps to be followed to reinforce the policy.

2. Unclear procedures

Ensure the procedure is thorough by detailing the who, what, where, when and how of the organisation’s drug and alcohol management program. It should state who is tested (e.g. employees, contractors), what drugs are being tested for (e.g. which drug classes), where (e.g. on-site, off-site), when (e.g. random, post-incident, for-cause) and how (e.g. urine vs saliva) and by whom. It should also detail what support is available to workers and disciplinary procedures.

3. The ‘catch and sack’ approach

This is where procedures are considered harsh, unjust or unfair such as immediate termination following one breach of the policy. The risk here is employers open themselves up to unfair dismissal claims. When considering unfair dismissal claims the FWC will look at the employer’s policy and procedures, whether it was followed and applied correctly, what process they went through to make their decision, any training and support offered to the worker and whether the decision was fair, just or harsh (amongst other things).

4. Inconsistency in the application of the procedure

Inconsistency in the procedure application and fairness are common problems in enforcing policies and procedures. Often an employer may miss a step, intentionally or otherwise, or manipulate the procedure to get the desired outcome; for example, deliberately targeting a person in a random test… which of course, is not random! Other times they may terminate a worker without following the procedural steps… again, not the correct procedure!

5. Lack of training

This one is really simple, but so often not done. Employers need to ensure that all workers are trained on the drug and alcohol policy and procedures – at induction and ongoing, and sign training attendance sheets. Employees should be educated on the dangers of alcohol and drugs in the workplace in all standard training, and made well aware of the organisation’s policies and procedures. Best practice is to include a competency test to show that the employee understood what they were taught.

 

It is understandable, despite their best intentions, how an organisation can fail to implement positive drug and alcohol policies. But it is a critical one to get right! Not only will having a clear, detailed, fair and enforceable procedure be more successful in eliminating drugs and alcohol in the workplace, but it will save your bottom line in the long run!

Top 5 Mistakes Employers make with Drug & Alcohol Testing in the workplace

Navigating safe workplaces

“For a workplace drug & alcohol testing program to be successful it must be clear, detailed, fair, enforceable, consistent in its application and focus on education and support.”

Many employers develop a drug and alcohol testing program with the right intentions – they want to keep people:

  • safe at work,
  • prevent dangerous and costly workplace accidents
  • maintain a good brand reputation in their market.

However, despite their good intentions, most will fail dismally!


We asked our team of workplace drug testing experts what they see as the top 5 common mistakes in drug & alcohol policies and procedures.

Here’s what they said:

  • The half-baked approach
  • Unclear procedures
  • The “catch & sack” approach
  • Inconsistency in the application of the procedure
  • Lack of training

For  more information see Work Options  “LightHouse Keeper – Navigating Safe Workplaces” Article

Consequences of an unclear Drug & Alcohol policy

What Can Happen if your Drug & Alcohol Testing Policy is Unclear & too General – A Case Study

 

Imagine this…

its the evening of Melbourne Cup day, night shift has commenced and an employee reports to you that another employee has passed out asleep in a truck at work, and she smells of alcohol.

To make matters worse you discover that as a result of this, approximately 50 chickens have died. Your drug and alcohol policy says you have a ‘zero tolerance for alcohol’.

 

What would you do…?

 

For  more information see Work Options  “LightHouse Keeper – Navigating Safe Workplaces” Article

Drug & Alcohol Policy -Sept 2018