|
An employee is clearly 'under the influence' - what can you do?
Employers frequently ask me how they should tackle this issue in their workplace. It is a complex subject, fraught with pitfalls, but problems of this nature have potentially lethal consequences. Therefore, the responsible employer identifies the hazard, undertakes a risk assessment, and puts control measures in place to mitigate the risk.
Other factors that need to be taken into account when deciding how you would handle a drug or alcohol affected employee in your workplace include:
• Anti-discrimination law – addiction to drugs or alcohol is considered to be a disability, and therefore termination on the grounds of addiction would be discriminatory unless the employer could demonstrate that the employee was unable to fulfil the inherent requirements of the job;
• Privacy law – tests taken by an employee would not be covered by the privacy principles, because they do not apply to employee records. Pre-employment tests taken by a candidate who is not subsequently employed would be covered by the privacy principles, and employers would need to consider data security measures to prevent breach of the principles.
Ultimately, what an employer wants is an employee who is fit to work, who will not place themselves or other employees in danger. It is not just drugs (prescription or illicit) or alcohol that might make someone unfit to work on a particular day. You may also need to consider that someone is fatigued, stressed or perhaps has a medical problem that makes you think they’re drunk or stoned, but is in fact something else entirely.
If you were going to develop a drug & alcohol policy in your workplace, there are several steps you would need to take to produce a best-practice policy that will back you up if you should ever need to defend actions you take under the policy.
1. Consult with your employees (and their representatives if they so choose) about a policy and procedures – this is an obligation under occupational health & safety law, if you are implementing any new measure to improve safety you must consult with the employees.
2. Educate employees about the content of the policy, the procedures that will be followed if a breach is suspected, and the consequences of breaching the policy – if this is not done on an employee-by-employee basis then there is a chance action take would not stand up in court or in arbitration.
3. Apply the policy and procedures consistently across the board – case law shows that companies that have been inconsistent in their application of drug & alcohol policies come unstuck in court.
When you are developing procedures to take if you suspect that one of your employees is unfit to work, you would need to take into account:
• How to identify an impaired employee – this usually comes down to things you observe, such as behaviour or appearance that is out of the ordinary;
• How to approach an employee – bearing in mind that if an employee is impaired, any approach should be calm, firm and simply point out that you believe that they are unfit for work. It is best to avoid saying “you’re drunk” or “you’re stoned”, but stick to what you can observe yourself;
• What happens next – if the employee is sent home because they are not safe at work, how will they get home? Do they access accrued sick pay?
• When the employee next reports for work, what will happen? Warnings are certainly appropriate, but the focus of a policy such as this should mainly be safety, education and rehabilitation.
When you are consulting with employees about the content of a policy and procedures, the issue of testing for drugs or alcohol is likely to arise. You would need to discuss:
• What sort of testing is done – urine testing is more accurate but resisted in the workplace, saliva testing is more convenient but there are only two laboratories in Australia accredited to test to the Australian Standard;
• What cutoff levels would be set;
• What sort of follow up and secondary testing would be done – an initial test done at the workplace will not be sufficient evidence to justify disciplinary action;
• Whether testing is ‘for cause’, i.e. you suspect someone is impaired, random or only after accidents;
• Would testing be conducted by employers, or by a commercial organisation that specialises in this type of testing?
Bear in mind, too, that unless an employee has agreed to a test, forcing a test on an employee may, under certain circumstances, be unlawful.
If you have any queries about developing or implementing a drug & alcohol policy in your workplace, please call Emma Watt on 8822 3712 or 0411 708 073 or email her on emma at emmawatt dot com dot au.
2009-04-24
back to top |
