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Information of interest to our Clients and for the industry

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.

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