Managing workplace drug and alcohol issues

Managing drug and alcohol issues at work has become more complex, with increasing safety and legal challenges for employers. There are also increasing emerging issues surrounding the use of e-cigarettes and vaping and prescription medicinal cannabis.

Why is it important for employers to manage drug and alcohol issues in the workplace?

Managing drug and alcohol issues in the workplace is a work health and safety (WHS) issue. Drugs and alcohol can impact a person’s ability to work safely and can potentially impact their ability to exercise judgement and affect coordination, concentration levels and alertness at work due to fatigue.

Someone who is affected by drugs or alcohol whilst at work could potentially injure themselves or others and could even make more mistakes. These issues may also result in reputational or financial damage to the business.

Depending on the industry or the role that an employee is in, there may be legal compliance requirements that people have a zero drug and alcohol reading, such as in the transport industry.

Can employers require employees to undergo drug and alcohol testing?

Whether employees can be required to undergo drug and alcohol testing will depend on whether this is permitted under their employment contract, an appropriate workplace policy, industrial instrument such as a modern award or enterprise agreement, or legislation.

It is important that any requirement or direction from an employer to undergo drug and alcohol testing is lawful and reasonable, taking into account:

• WHS considerations
• the nature of the work
• the nature of the environment
• appropriate types of testing
• relevant industry standards, requirements or practices
• any legal requirements.

It is recommended that employers develop drug and alcohol policies which include testing procedures and potential consequences for breaches.

Emerging issue – e-cigarettes and vaping

An issue that is starting to create concerns in workplaces is the increased use of e-cigarettes and vaping. Some individuals may use these devices indoors, exposing others to harmful chemicals and toxins.

Existing workplace policies might ban cigarette smoking indoors and may not extend to e-cigarettes specifically. It is recommended that e-cigarettes and vaping are dealt with in a similar way to smoking by prohibiting the use of e-cigarettes and vaping indoors and specifying that they can only be used in designated outdoor smoking areas.

Employers should review any workplace smoking policies and update these to include provisions dealing with e-cigarettes and vaping.

Emerging issue – medicinal cannabis

Legislative amendments have enabled authorised medical practitioners to legally prescribe medicinal cannabis, which has created concerns relating to impairment in the workplace.

Employers should update workplace drug and alcohol policies to cover medicinal cannabis, including requirements for workers prescribed with medicinal cannabis to provide medical evidence demonstrating fitness for work.

Lessons from cases

In Trevor Purves v Queensland Rail Transit Authority t/a Queensland Rail [2022] FWC 3343, Mr Purves had worked for Queensland Rail for 39 years. During a random test, he tested positive to alcohol and another drug.

Queensland Rail’s policy required a 0.00 blood and alcohol concentration, and this was also a requirement in relevant legislation. Mr Purves was dismissed for breaching the policy and lodged an unfair dismissal claim.

The Fair Work Commission (FWC) accepted that Queensland Rail had a valid reason to dismiss but found the dismissal to be disproportionate to the level of misconduct and was therefore harsh, having regard to the following factors:

• The likelihood that Mr Purves would find it difficult to gain other employment because of his age and limited literacy and IT skills.
• His length of service and otherwise unblemished record.
• The fact that Mr Purves followed his usual drinking routine on which he was previously tested numerous times the following day but had never tested positive.

The FWC also noted that the policy did not make termination the only disciplinary option and had room for exceptions. The FWC ordered that Mr Purves be reinstated.

In Goodsell v Sydney Trains [2023] FWC 3209, Mr Goodsell had worked for Sydney Trains for 26 years. While on approved leave, he tried some cocaine with a group of friends and upon his return to work, returned a positive test result via a random drug and alcohol test.

His employment was subsequently terminated for breach of the company’s policy and code of conduct.

The FWC found that there was a valid reason to dismiss, but the dismissal was harsh in consideration of the following:

• Mr Goodsell was highly respected in the workplace and had previously undergone 40 random drug and alcohol tests which were all negative.
• Low concentration of cocaine was found and low risk of impairment.
• Sydney Trains had failed to inform employees of the consequences for breaching their zero-tolerance policy.
• There was a lack of consideration of other mitigating factors by Sydney Trains.
• Sydney Trains “blindly accepted” the positive test result, without considering the risk of impairment.

These cases demonstrate that while a breach of a zero-tolerance policy is likely to provide a valid reason for dismissal, the FWC will also consider other relevant matters to determine whether the dismissal was harsh, unjust or unreasonable, which is going to depend on the specific facts of the situation.

Practical guidance

If an employer is thinking about terminating an employee’s employment because of a breach of a zero-tolerance drug and alcohol policy, the following factors should be used to assess the potential risk of an unfair dismissal claim:

It is important to remember that each situation is unique, and employers should carefully weigh these factors before making decisions related to termination of employment.