The legality of alcohol and drug testing at workplaces in Australia

In short, it is legal for employers in Australia to conduct workplace drug testing in accordance with the company's alcohol and drug testing policy.

The legality of alcohol and drug testing at workplaces in Australia

There have been long-standing debates in many countries about whether drug testing in the workplace should be allowed. It is, in fact, legal for employers in Australia to conduct workplace alcohol and drug testing in accordance with the company's alcohol and drug testing policy. This ensures that both employer and employees are held responsible— employers for managing the health and safety risks of workplaces, and employees for not working under the influence of alcohol and drugs, as laid out in the WHS Act.

Circumstances that warrant alcohol and drug testing at the workplace

Despite being legal, alcohol and drug testing at the workplace should be done with a reasonable cause and with a comprehensive alcohol and drug testing policy that has been well communicated with employees in place. Some high-risk industries, such as aviation, mining, and transport, may conduct alcohol and drug testing more rigorously than others.

  • Random testing

    A proportion of employees are selected for the testing without being informed in advance to identify those who are using alcohol and drugs at the workplace.

  • Blanket testing

    All employees are tested in one single event or regularly.

  • ‘For cause’ testing

    An employee whose behaviour raises reasonable suspicion may be asked to get tested.

  • Pre-employment testing

    An employee may be asked to get tested before commencing work. This is to prevent hiring individuals who have been misusing drugs.

  • Post-incident testing

    Employees involved in an accident that occurred in the workplace may be asked to get tested to determine if alcohol and drug influence was a factor.

  • Return-to-work testing

    An employee who previously tested positive, is currently undergoing or has recently completed rehabilitation for alcohol and drug misuse may be required to test negative before returning to work.

  • Voluntary testing

    Employees are provided with the means to self-test for alcohol and drugs of their own accord.

Can employees refuse alcohol and drug testing?

They can.

However, if the alcohol and drug testing policy has been specified in their employment contract, they could be subject to disciplinary action for not complying with company policy. Therefore, it is important for employers to clearly communicate the ins and outs of the company’s alcohol and drug testing policy to its employees at the very beginning, to set the right expectations and avoid any misunderstanding.

The main concern is punishment and unfair dismissal as a result of a positive alcohol and drug testing result

Alcohol and drug testing, if done properly in accordance with the company’s alcohol and drug testing policy, poses no major issue as long as the employees are well informed. It should be used as a way to identify employees who are struggling with substance use so that the employer can provide support for their rehabilitation rather than marginalising them. Employees should not be at risk of punishment or getting fired based on alcohol and drug testing results.

Besides, alcohol and drug testing are not foolproof. Factors such as medication and contamination can give a false-positive test result. Employees should be given the opportunity to explain themselves and to conduct follow-up testing if necessary.

 

When drafting the company alcohol and drug testing policy, employers should take into account the reasons behind the alcohol and drug testing and choose the most suitable method for conducting the tests. It should be communicated with all employees involved to make sure that everyone is on the same page. Ultimately, alcohol and drug testing should be used as a guideline for creating and maintaining a safe working environment for the employees, not grounds for persecution.

Disclaimer: The information provided in this article is for general reference only. Please seek advice from professionals according to your business’s needs.

Jaka Exstrada

Jaka Exstrada

Since 2017, Jaka has been providing consultation for alcohol and drug testing policies to companies in various industries, such as mining, transport, construction, and medical, in Australia. As an accredited Drug and Alcohol Officer for Drug Abuse Testing, he brings valuable insight to companies that want to create and maintain an alcohol and drug-free working environment for the safety of their employees, as well as to ensure the efficiency of on-site operations.