workplace drug and alcohol issues

Introduction The paper will examine implications of genetic, drug and alcohol testing in the context of workplace and what effects it has on workplace safety and ethical and legal issues that arise in relation to such testing, both for employers and employees. It will also look into corporate culture, motivation of employees, job performance, productivity and workplace safety in relation to presence or absence of such testing. The objective is to examine the rational for such testing and the relevant legislation and the case law in order to see how the courts deal with disputes that arise in this context, and the effects that it has in the workplace in Australia and some comparable jurisdictions.1 Findings of some research in this field will be examined and potential for improvements both in the policy design and desired outcomes will be discussed. Considering competing interests related to workplace genetic, drug and alcohol testing, including pre-employment screening, and the state of current body of knowledge, the aim is to distil what tests are seen as successful in ensuring workplace safety, minimisation of risks to employees health and wellbeing, minimisation of risks to employers, and have positive effects on productivity. As it is in the interest of both employers and employees to cooperate and insure that workplaces are safe and foster motivated and productive workforce (which is mandated by the Occupational Health and Safety legislations), the paper will look into what is considered to be the best practice in administering such tests so that difficulties and risks associated with conducting such tests and potential negative impact on employees, as well as on employers can be avoided or minimised. Overview Labour law in Australia is heavily regulated and various acts and regulations deal with different aspects employment and rights and obligations of employers and employees.2 Terms in employment contracts or agreements and corporate policies and procedures1

UK and USA Australian Human Rights Commission Act 1986;Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Equal Opportunity Act 1995 (Vic); Fair Work Act 2009(Cth); Occupational Health and Safety (Commonwealth Employment) Act 1991; Occupational Health and Safety Act 2000 (ACT); Occupational Health and Safety Act 2000 (NSW); Occupational Health and Safety Act 2000 (NSW); Occupational Health and Safety Act 2004 (Vic);Occupational Health, Safety and Welfare Act 1986 (SA); Occupational Safety and Health Act 1984 (WA); Racial Discrimination Act 1975 (Cth ); Sex Discrimination Act 1984 (Cth); Work Health Act 1986 (NT); Workplace Health and Safety Act 1995 (Qld); Workplace Health and Safety Act 1995 (Tas)2

Workplace management issues ----------------------------------------------------------------------------------------------------------------------------------------

are also relevant.3 Arguably, over the years there were a lot of legislative changes as the governments of different persuasion tried to deal with employment issues, and balance sometimes competing interests (employers push for ever higher profits and productivity and need to have flexible workforce with rights of employees such as better pay and working conditions, privacy and job security). The aim is to achieve outcomes which are workable and fair for both. Occupational health and safety legislation (both federal and state) grants right and imposes obligation to both employers and employees to promote and insure safe working environment. One of the primary objectives of the occupational health and safety legislation is to secure the health, safety and welfare of employees and other persons at work4 and to eliminate, at the source, risks to the health, safety and welfare of employees and other persons at work.5 Section 2(2) signals the Parliaments intention that health and safety principles specified in section 4 must be taken into account in administration and interpretation of the Act6of which s 4(2) places the main responsibility for health and safety in a workplace on persons who control or manage the workplace. In order to discharge general duties relating to health and safety the person is required to eliminate the risks, so far as is reasonably practicable, and if it is not reasonably practicable to eliminate them, then to reduce those risks so far as is reasonably practicable. What is (or what was at a particular time) reasonably practicable in relation to ensuring health and safety depends on the circumstances of a particular case, but what must be considered is specified in s 20(2) of the Act.7(a)the likelihood of the hazard or risk concerned eventuating; (b)the degree of harm that would result if the hazard or risk eventuated; (c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk; (d)the availability and suitability of ways to eliminate or reduce the hazard or risk; (e)the cost of eliminating or reducing the hazard or risk.

The section codifies the common law definition of reasonable practicability.8

3 4

Stewart A, Stewarts Guide to Employment Law, (3rd Ed) The Federation Press 2011. Occupational Health and Safety Act 2004 (Vic) s 2(1)a 5 Occupational Health and Safety Act 2004 (Vic) s 2(1)b 6 Occupational Health and Safety Act 2004 (Vic) 7 Occupational Health and Safety Act 2004 (Vic) s 20(2) 8 Tooma M, Toomas Annotated Occupational Health and Safety Act 2004 Victoria, (13th Ed.) Lawbook Co, 2005 p 26.

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The Act9 defies employers duties to employees (in broad terms) in section 21 and according to s 22 there is also a duty to monitor the health of employees, and that duty is ongoing. The general duty to provide safe working environment and an ongoing duty to monitor employees health can be used as a justification for introducing drug and alcohol testing policies and sometimes also genetic, psychological and other medical testing as a part of the recruitment process to avoid potential future problems, and/or in the course of employment to have ongoing testing, both to minimise risk to others that could eventuate because of someone working and making decisions when under influence of drugs or alcohol, or in some other way unfit to work. It can also be used to identify employees with health, drug or alcohol problems, or those whose genes may be damaged by workplace toxins or radiation. However employers desire to comply with the health and safety requirements and introduce such tests in their workplace must be balanced with compliance with antidiscrimination legislations, and need to protect privacy and confidentiality of any personal information related to employees that is obtained as a result of testing. Due to sensitive nature of such information, privacy protection is a paramount. If any such tests are not done properly or compromised in any other way, employers may be exposed to unlawful, unfair or adverse action claims, so it is in their best interest to do it properly and lawfully. Adopting the best practice approach would help in protecting employers interests as well as interests of employees. Duties of employees (in relation to the occupational health and safety) are specified in section 25, where s 25(1)(b) makes an individual employee responsible for health and safety of persons who may be affected by the employees acts or omissions to act at a workplace, so it can be used to prosecute extreme cases of employee negligence, more so if an employee has a supervisory or managerial role.10 Compared to prosecutions under s 21, prosecutions under s 25 are rare, as legislation emphasizes the responsibility of employers to provide safe working environment for their employees and the duty extends to everyone else who may be affected by employers undertaking in the spirit of the Act.11

9

Occupational Health and Safety Act 2004 (Vic) Tooma M, Toomas Annotated Occupational Health and Safety Act 2004V Victoria, (13th Ed.) Lawbook Co, 2005 p 85. 11 Occupational Health and Safety Act 2004 (Vic)10

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In some industries where employees operate motor vehicles or machinery potential for accidents is high especially if an employee in control of the vehicle or machinery is intoxicated or suffers from a hangover effects of intoxication or withdrawal symptoms of drug use. Apart from drug and alcohol testing, some employers also adopt psychological and genetic screening and rely on their predictive qualities to assess career potential of employees and or potential risks behaviours, predisposition to work related injuries and health problems, etc and implications of such tests need to be examined. There is a clear legislative support for drug and alcohol testing in some industries. It is illegal to drive a train, a tram, a car or a truck, fly a plane and sail a ship under influence of drugs or alcohol (when blood level is over the legal limit), regardless whether or not it results in an accident. Those driving large vehicles (over 15 tones gross mass) must have a zero blood alcohol reading12 and for drivers of regular vehicles it cannot exceed 0.05 percent.13 Use or transport of drugs (including cannabis) is an offence and so is the possession.14 Driving under influence and causing a death is a criminal offence (culpable driving).15 Under common law, both employers and employees have duties to each other. An employee has a duty to provide a faithful service including fidelity, and duty to obey reasonable instructions. Whether requesting an employee to submit to drug, alcohol, psychological or genetic testing in the workplace is considered to be giving a reasonable order will be looked at in the context of such requests. There is also evolving duty of trust and confidence16 (that the employer will treat the employer fairly and will not do anything that could compromise that relationship). So, if drug, alcohol, psychological or genetic testing policies are adopted in the workplace, any such policy would have to be well thought through and administered fairly and it must be nondiscriminatory in its operation. Duty to act fairly and reasonably was found to be breached by the employer ordering an employee to undergo psychiatric examination because of a complaint made by another employee.17

12 13

Road Safety Act 1996 s 52. Road Safety Act 1996 (Vic) s 49. 14 Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 75 and 73. 15 Crimes Act 1958 (Vic) s 318. 16 Stewart A, Stewarts Guide to Employment Law, (3rd Ed) The Federation Press 2011 p 231. 17 Bliss v South East Thames Regional Health Authority [1987] ICR 700.

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Drug and Alcohol Testing Alcohol overuse is prevalent in Australia, and alcohol related violence often dominates daily news. Statistics suggest that a third of the Australian workforce regularly drinks at risky levels, and that one in every 16 works under the influence of alcohol.18 Given wide spread use of alcohol in general population it also affects workplaces.19 The 2004 National Drug Strategy Household Survey of Australians aged 14 years and over reported that 4.4% of people surveyed admitted going to work while under the influence of alcohol or other drugs in the previous 12 months. Alcohol and drug use cost Australian industry more than 4.5 billion dollars a year in lost productivity and overall impact on economy is around 15.3 billion dollars, so concerns about illicit drug use and alcohol in the workplace are justified. Data collected in Australia indicates a relatively small proportion of employees engage in illicit drug use, but a much larger proportion engage in harmful patterns of alcohol consumption.20 As workplace accidents result in unacceptably high social cost and carry a substantial economic impact for employers and society, it is understandable that employers turn to pre employment and ongoing alcohol and drug testing in order to reduce the risk, and it is becoming more wide spread.21 However, use of bodily samples to test for alcohol and drugs in the context of employment has moral, ethical and legal implications of fundamental importance and therefore requires a determination of when it is fair and appropriate to conduct such tests.22 Some argue that in general, drug testing is an unreliable method for assessing an individuals fitness for work and that the introduction of testing programs into the workplace can have significant negative consequences for both workers and employers.23 Behind any rationale for testing are assumptions about the technical and18

AIHW National Injury Surveillance Unit 2006. Alcohol and work: patterns of use, workplace culture and safety. Cat. no. INJ 82. Canberra: AIHW 19 Three million working days are lost in Australia each year because of alcohol overuse and it costs businesses more t than $500 million dollars every year. It is estimated that nearly 15% of workplace accidents are linked to alcohol, and alcohol is also implicated in 5% of workplace deaths; Alcohol and Other Drug Issues http://www.wahealtheducation.com.au/workshops-and-training/detail/alcohol-and-other-drug-issues/ accessed on 4 Jun 2011. 20 Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged accessed on 10 Jun 2011. 21 Alcohol and Other Drug Issues http://www.wahealtheducation.com.au/workshops-and-training/detail/alcoholand-other-drug-issues/ accessed on 4 Jun 2011. 22 ILO Management of alcohol- and drug-related issues in the workplace www.ilo.org/wcmsp5/groups/.../--ed.../wcms_107797.pdf accessed on 14 May 2011. 23 Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged accessed on 10 Jun 2011.

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practical capabilities of testing. It is argued that drug testing may unintentionally obscure the true extent of harm in settings such as the workplace especially where a positive test has punitive consequences such as immediate termination of employment and drugs testing could result in: 24 a focus on illicit drugs. Australian workforce data indicates a relatively small proportion engage in illicit drug use, but a much larger proportion engage in harmful patterns of alcohol consumption.

less attention being paid to drug-related behaviours. Hangovers and other behaviours associated with drug use (e.g., aggression, mood swings) can continue to negatively impact on safety and productivity long after use is detectable by most testing methods. displacement effects. Individuals may shift from the use of drugs that are easily detected, to other drugs that are harder to detect. For example, due to the wide window of cannabis detection offered by urinalysis, individuals may shift to amphetamine use which has a much narrower window of detection. unintended behavioural change. Individuals may change their behaviour to avoid detection, rather than reducing use. For example, they may be aware of the timing of tests and change patterns of consumption to avoid detection, use commonly available masking agents, or consume additional over-the-counter or prescription medications that can also mask use.

There is a variety of available testing programs including, pre employment screening, random testing and testing for cause following an accident or near miss incidents. Different test types are also in use and include breath testing, hair testing, urinalysis, and saliva, or oral fluid testing. Their purpose in the context of workplace is to identify employees whose alcohol (or other drug) consumption is likely to pose a risk to safety or productivity. Consequently testing programs are a secondary prevention response targeting individual workers and place little emphasis on primary prevention. Many workplace testing programs in use target illicit drug use but alcohol is the most commonly used drug in Australia and therefore the most of the drug related risk in the workplace is likely to be associated with alcohol use. Types of drug tests utilised are limited in their ability to detect impairment, especially for the most common type of drug test utilised in workplace such as urine tests. Breath testing is a more reliable method of detecting alcohol impairment but it also has limitations because it cannot detect other alcohol related problems such as effects of hangover that could also impact on workplace safety and productivity.25 There are indications that the number of tests24 25

Ibid.

Pidd, K, Berry JG, Harrison JE, Roche AM, Driscoll TR, Newson RS. 2006. Alcohol and work: patterns of use, workplace culture and safety. Injury Research and Statistics Series Number 28. (AIHW cat no. INJCAT 82) Adelaide: AIHW p 117.

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being conducted in Australian workplaces is rapidly rising despite some doubts regarding their effectiveness. There is no legislation in Victoria that gives employers specific right to test employees for drug and alcohol use, but support could be found under duties imposed on employers under occupational health and safety provisions.26 Some of employers objectives are: to provide safe workplace and comply with provisions in Occupational Health and Safety legislation which needs to be balanced with obligations under antidiscrimination legislation, also to protect and maintain privacy and confidence of employees personal information, to avoid unfair, unlawful or adverse action claims and workers compensation claims that can result from unsafe work practices. The purpose of drug or alcohol testing in any setting, including workplace is to both detect and deter use.27 Employers could use drug and alcohol testing incorporated in their recruitment process in order to discourage drug users or alcoholics from applying, but this purpose is not without criticism.28 Intent is to detect them prior they join the workforce. However if this is not done properly employers may be accused of discriminatory practices, so tests must be designed so that they exclusively and directly relates to the inherent requirements of the job. The law is not clear on whether an employee has an implied duty to submit to testing on the request of the employer. There may be express obligations to do so in the employment contract and corporate policies to which an employee had agreed to comply with, but in absence of any express obligations, whether a direction to be tested would be regarded as a lawful and reasonable order would depend on the nature of the employment29 and if the employer could justify the request to test. One of the justifications would be to discharge employers health and safety obligations, such as to provide safe working environment and to monitor health of employees, and this duty extends also to the officers of the company and employees themselves in relation to matters over which they have control.30 To avoid controversy and future disputes, it is26

Occupational Health and Safety Act 2004 (Vic) ss 21, 22, 25, 26 and 144. Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged accessed on 10 Jun 2011 28 Pidd K. Drugs and Alcohol Abuse and Testing of Workers for the Presence of Drugs and Alcohol , http://www.royalmedical.com.au/pdfs/8-NCETA_Report.pdf viewed on 14 May 2011. 29 Anderson v Sullivan (1997) 78 FCR 380. 30 Occupational Health and Safety Act 2004 (Vic) ss 21, 22, 25, 26 and 144.27

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advisable for employers to cooperate with employees and seek their participation so that drug and alcohol testing (or any other testing) is introduced by agreement.31 There is also some controversy in relation to drug and alcohol testing, especially where policies are not properly formulated and because of somewhat invasive nature of tests itself.32 Having the right policies and procedures is important, but they also must be applied, monitored and enforced universally and consistently to avoid disputes.33 In order to achieve legislative compliance and other objectives employers must know their legal rights and obligations, know their workforce and specific issues associated to their industry and look for signs of potential problems, emphasising prevention rather than cure, and therefore they need to train their managers and supervisors so that they are able to do that, but also their employees so that they are aware of the occupational health and safety issues and relevant policies and procedures that they are expected to comply with. It is not enough for a company to have a policy about drug and alcohol overuse or zero tolerance policy if employees do not know about it, or if it has not been enforced in the past, despite some research showing that workplaces with zero tolerance policy are safer. While there is some evidence that workplace testing may have a deterrent effect on employees alcohol and other drug use and that it may be associated with reductions in workplace injuries and improved productivity, some reviews of research concerning the effectiveness of testing over the years concluded that many of such studies were methodologically flawed and that overall scientific evidence for the effectiveness of workplace testing is weak. Also, it is suggested that in many cases the results could possibly be explained by other factors such as changes in population consumption patterns, changes in employer policy and attitudes, and overall improvements in safety and productivity.34

31

Caltex v Australian Institute of Marine and Power Engineers (2009) 190 IR 130; It is also recommended in WorkSafe Visctoria ALCOHOL IN THE WORKPLACE - Guideline s for developing a workplace alcohol policy 1st Edittion May 2005, and ILO Code of Practice. 32 Shell Refining (Australia) Pty Ltd VCFMEU [2009] AIRCFB 428; see also Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged accessed on 10 Jun 2011 33 See Anderson v Sullivan (1997) 78 FCR 380; Caltex v Australian Institute of Marine and Power Engineers (2009) 190 IR 130; Kidd v Linfox Australia Pty Ltd [2008] AIRC 398 (30 May 2008); Hall v Ulan Coal Mines Dec 710/98 S Print Q2174. 34 Addopted from Pidd, K, Berry JG, Harrison JE, Roche AM, Driscoll TR, Newson RS. 2006. Alcohol and work: patterns of use, workplace culture and safety. Injury Research and Statistics Series Number 28. (AIHW cat no. INJCAT 82) Adelaide: AIHW p 117.

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Employers have an ongoing duty to monitor the workplace and employees health.35 The question is what needs to be done in order to discharge that duty.36 Some tell-tell signs of drug and alcohol problems in the workplace are: increased accidents and near miss accidents, injuries, property damage, frequent absenteeism and habitual lateness, poor on the job performance, misplaced overconfidence, colleagues carrying extra work, increased conflicts among employees, aggression and outbursts, violence, discrimination and harassment, disciplinary problems, theft, low morale, patterns of depression, moodiness, confusion, fatigue, poor timekeeping, unpredictable and unreasonable behavior, insubordination, financial or family problems, neglect of personal grooming, poor coordination and concentration, visual disturbance. Some environmental risk factors point to workplaces that are dangerous and hazardous (high levels of noise, dirt and risk of injuries, high level of stress), where tasks are repetitive and perceived as boring, where there is a drinking subculture and where drugs and alcohol are easily available from other employees. Those in charge of implementing workplace alcohol and drug policies needs to ensure that any such policy is legal, that it is effective (produces positive outcomes) and also it needs to be cost effective so that their company can afford it. This is very complex task and the reported research so far available could offer some guidelines in regards what works and why, and what does not work, but regard must be given to the specific aspects of the workplace itself. International Standard (ILO Code of Practice) also provides guidelines and so does WorkSafe Victoria. It is recommended that alcohol and drug policies and programmes should apply to all staff, managers and employees and should not discriminate. Such policies and programmes should promote the prevention, reduction and management of alcohol and drug related problems in the workplace and not being focused on punishment though it is recognised that taking disciplinary action which sometimes may result in dismissal of an employee may be warranted. Some key recommendations are:37

35 36

Occupational Health and Safety Act 2004 (Vic) s 22. How closely you need to monitor your workforce and how to do it, what needs to be done, to what you need to pay attention? 37 ILO Management of alcohol- and drug-related issues in the workplace www.ilo.org/wcmsp5/groups/.../--ed.../wcms_107797.pdf accessed on 14 May 2011.

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Treatment of alcohol and drug related problems as health problems, without any discrimination Jointly assessment of the effects of alcohol and drug use in the workplace, by employers and workers and their representatives, and cooperatively develop a written policy that is clear and unambiguous and jointly do what is reasonably practicable to identify job situations that contribute to alcohol and drug related problems, and take appropriate preventive or remedial action. Availability of information, education and training programmes concerning alcohol and drugs Ensure the confidentiality of all information concerning alcohol and drug related problems. Workers should be informed of exceptions to confidentiality which arise from legal, professional or ethical principles. Job security for employees who seek treatment and rehabilitation for alcohol or drug related problems Recognition of employers right to discipline workers for employment related misconduct associated with alcohol and drugs, but counselling, treatment and rehabilitation should be preferred to disciplinary action, except where an employee fails to cooperate fully with the treatment programme The employer should adopt the principle of non-discrimination in employment based on previous or current use of alcohol or drugs, in accordance with national law and regulations.

Mines and transport industries (road, railways, civil aviation and marine transport) have legislative support for testing programs, but where there is no clear legislative support for implementation of testing in the workplace there should be a full risk assessment in consultation with employees and unions before implementing any such policy to avoid potential negative impacts. Also, employers need to be mindful of limitations of such tests and care needs to be taken when interpreting test results. For example, testing may not be able to detect new drugs, positive result does not necessarily mean that an employee is intoxicated and impaired so that he or she could not do the job. Also, positive result may show when an employee is using prescribed medication due to illness and therefore discrimination and privacy issues arise. Legal challenges in regards to reliability of adopted tests are always possibility and challenges are also possible in situations where drug or alcohol related problems in the workplace result in dismissal of employees. The fact that positive test to drug use does not necessarily mean intoxication and impairment was illustrated in Hall v Ulan Coal Mines.38 A mine employee was alcohol and drug user and had personal problems. After he snapped at work he was put on a program that included random urine tests, performance38

Hall v Ulan Coal Mines Dec 710/98 S Print Q2174.

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monitoring and meetings. Two years later he drank and smoked cannabis while attending a party outside working hours. Two days later he tested positive for cannabis in a random test and his employment was terminated on grounds of serious misconduct. It was held that summarily dismissal was not justified under the circumstances. To avoid problems, WorkSafe Victoria recommends that testing polices should contain the type of tests used, how accurate tests are, circumstances in which they are carried out, consequences if any if failing a test or refusing to take one, what will be done with the results and legal rights of those tested.39 Just having a testing policy that meets those recommendations may not be enough on its own as indicated by the decision in Kidd v Linfox40 where a truck driver who was a long term employee was dismissed after allegedly failing to comply with a request to undergo a random drug test. The companys drug and alcohol policy provided for random testing of workers in safety sensitive positions such as truck drivers and included sanctions for those who fail the test or refuse to submit to testing. The AIRC was not satisfied that the employee knew about the policy sufficiently, or was properly trained in the policy, to be reasonably expected to comply with all aspects of the policy and ordered the employee to be reinstated. In the circumstances of the case the dismissal was seen as harsh, unjust and unreasonable as there was no available evidence that he had been given a copy of the policy document, that he was trained in and understood the full scope of the policy and that he had been warned of and understood the consequences of failing to comply with the policy. So employers must also ensure that not only such policy exists, but also that employees know of the policy and understand it and keep records as evidence that employees where adequately informed and trained in all aspects of the policy. In the case of Tony Selak v Woolworths Limited 41 Mr Selak worked for Woolworths for 20 years and at the time of dismissal was a store manager at one of the stores. He had a lunch with another employee who was considering leaving the company during which they also consumed beer. He was summarily dismissed the next day because he breached zero tolerance policy to alcohol. He sued for unfair dismissal. His employment contract contained express terms of his employment conduct which prohibited alcohol consumption by employees during work hours including meal39

WorkSafe Visctoria ALCOHOL IN THE WORKPLACE - Guideline s for developing a workplace alcohol policy 1st Edittion May 2005, p 14. 40 Kidd v Linfox Australia Pty Ltd [2008] AIRC 398 (30 May 2008). 41 Tony Selak and Woolworths Limited [2007] AIRC 786 (26 October 2007).

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breaks. Also it included that he was required to adhere to the companys code of conduct and equity policies and breach of the company policy, involvement in or being party to serious and wilful misconduct, or not obeying a lawful instruction his employment may be immediately terminated. The AIRC decided that his dismissal was justified because he had breached an express term of his contract of employment which banned alcohol consumption during work hours and that dismissal was not harsh, unjust or unreasonable under the circumstance, in particular because he was a store manager with more than hundred subordinate staff, and had breached a term of his employment contract by failing to follow a lawful direction not to drink alcohol during working hours. So, if such provisions are included in the employment contract, employers are less likely to be liable if they terminate employees for such breaches. However dismissal may be viewed as harsh if the employers dont follow their own alcohol policy as illustrated in Seamen's Union of Australia v Port Waratah Coal42 case. In this case the reinstatement was not ordered due to employees cumulative misconduct warranting the dismissal as it involved 3rd failure of drug and alcohol test that was warranted on basis of the employers right to maintain safe system of work. Employers also need to follow their own policies and properly explain them to their employees 43 and they cannot rely on policies that have never been enforced to justify dismissals, though proper policies existed.44 In a case where an employee refused to submit to alcohol test after being wrongly told that he would fail in a case of non zero reading (when actually reading below 0.05% was required) and was dismissed it was held that he was unfairly dismissed because the employer did not properly followed or explained the policy.45 Those in favour of drug testing in Australian workplace use US experience as support for the implementation of testing though the US legal framework and drug policy significantly differ from the Australian as their policy focuses on prohibition via law enforcement and our drug policy is based on harm minimisation and adopts prevention and reduction strategies. These differences affect the degree to which their testing42

Seamen's Union of Australia v Port Waratah Coal Services Limited [2008] NSWIRComm 1096 (10 November 2008). 43 See G Robin v Worley ABB PR913493 (23 Jan 2002). 44 Worden v Diamond Offshore General Company 1255/99 D Print S0242 (18 October 1999). There was evidence that some employees who tested positive in pre employment medicals where employed and sent to oil rigs, and the employee was successful in challenging the dismissal. 45 G Robin v Worley ABB PR913493 (23 Jan 2002).

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experience translates to Australia. In US drug free workplace is mandated by legislation (Drug Free Workplace Act (1988; 1991)) which implicitly authorises drug testing as a method of achieving a drug free workplace. Employers are allowed to develop policies that prohibit the use of alcohol on the job and prohibits the use of illicit drugs at any time (on the job and outside workplace). The right to conduct drug tests and enforce zero tolerance policy for alcohol use at workplace and use of illicit drugs at any time is generally upheld by US federal and state courts, which is not the case in Australia46 where there is no such legislation, the only exception being the recent (2008) amendments to civil aviation safety regulations which mandate drug testing in the aviation industry. Other Australian workplaces deal with workplace drug issues under various Occupational Health and Safety Acts and Regulations which mandate that employers provide safe workplace and they either explicitly or implicitly refer to alcohol and drug use as a potential safety risk, but do not mandate or recommend testing as a response.47 While there is a support for introducing drug and alcohol testing in OHS legislation, the discrimination based on disability of employees or job applicants is prohibited.48 So, is a drug or alcohol dependence disability? It appears that status of drug addiction in relation to unlawful discrimination had been unresolved in Australia before the decision in Marsden49 but it has never been specifically prohibited in Australia. However, despite the fact that the Federal Court actually made no finding on the issue of whether either heroin addiction or opioid dependency is a disability for the purposes of the Disability Discrimination Act, some believe that the reasoning adopted by the Federal Court opened the way for a finding that opioid dependency constitutes a disability.50 This received a lot of negative media attention and even calls to change the legislation and legalise discrimination on grounds of illicit drug and alcohol dependency. Despite many interest groups opposing such change, major political parties on state and federal level, media and employer groups strongly supported the proposal and they were in46

In Australia zero tolerance random testing, in the absence of strong justification, has been judged as unreasonable, and is seen as reasonable and justifiable measure only where specific workplaces are deemed to be safety sensitive or have special needs . 47 Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged accessed on 10 Jun 2011 48 Disability Discrimination Act 1992 (Cth) 49 Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Womens Memorial Club Ltd [2000] FCA 1619. 50 Gibson F. Drugs, discrimination and disability (2009) 17 JLM 400-411, p 403.

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favour of such legislative changes to both state and federal legislation especially in a context of the workplace. Business groups were concerned that litigation may result from a refusal to employ a person who is addicted to a prohibited drug, or a dismissal from employment upon learning that a person is addicted to a prohibited drug.51 The Human Rights and Equal Opportunity Commission stated that in almost eleven years of the operation of the legislation their records indicated a total of three complaints regarding discrimination on the basis of addiction to, or use of, a prohibited substance in the employment area and added that they would be interested to have any details of indications of wider prevalence of concerns in this area. On how to proceed, they used as an example the sections on illegal use of alcohol and drugs under the Americans With Disabilities Act which allowed employers to prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees and require that employees must not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace, and may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behaviour that such entity holds other employees, even if any unsatisfactory performance or behaviour is related to the drug use or alcoholism of such employee.52 In relation to the drug use and the safety in the context of a workplace, research examining the relationship between drug use and workplace fatalities indicated that alcohol use plays a major role.53 An examination of the workplace fatalities that occurred in Australia between 1989 and1992 found that of the 2389 fatalities recorded, raised blood alcohol content appeared to account for at least 96 (4%) of these deaths. Data on other drug use was only available for about one third of these fatalities, so the picture may be skewed, but drug use appeared to account for about 2% of the total. Of this 2%, the most common drug involved was amphetamine, and these fatalities occurred in road accidents. What is notable from this study is the fact that causal relationship between drug use and the fatality was determined by blood tests that could determine intoxication levels, and the major contributor to drug related deaths was alcohol. However, most methods of workplace testing cannot determine intoxication,5152

Ibid p 406. Ibid p 407. 53 The National Health and Safety Commission (1998) examined the workplace fatalities that occurred in Australia between 1989 and1992; Pidd K. Drugs and Alcohol Abuse and Testing of Workers for the Presence of Drugs and Alcohol, http://www.royalmedical.com.au/pdfs/8-NCETA_Report.pdf viewed on 14 May 2011.

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and the most common form of drug use detected by workplace testing is marijuana.54 It is argued that there is even less evidence regarding the effects of drug use on workplace accidents that do not involve a fatality. While employers may be justifiably concerned about potential impact of drug use on workplace safety, difficulty is that that most workplace tests do not test for intoxication, therefore some questions arise about their effectiveness, especially in industries where there is no clear legislative support for conducting such tests. The five most common responses to alcohol-related harm in Australian workplaces were categorised as alcohol policy, employee assistance programs (EAP), testing, health promotion, and other interventions. A brief summary of these interventions is presented in the table below which shows strengths and limitations of responses to alcohol-related harm in the workplace.55

There is no clear evidence regarding the effectiveness of workplace alcohol policies in reducing alcohol use or alcohol related harm in the workplace but in general it is accepted that workplace policies play an important role in determining employees attitudes and behaviours concerning alcohol use. Such policies are important part of response to alcohol related harm in the workplace and they provide the foundation for all other workplace interventions, however for them to be effective they need to contain clear statements on how the organisation deals with alcohol problems, to clearly articulate the objectives of the policy and clearly outline the processes for achieving these objectives. Policies should also outline processes and personnel involved in54

Pidd K. Drugs and Alcohol Abuse and Testing of Workers for the Presence of Drugs and Alcohol , http://www.royalmedical.com.au/pdfs/8-NCETA_Report.pdf viewed on 14 May 2011. 55 Addopted from Pidd, K, Berry JG, Harrison JE, Roche AM, Driscoll TR, Newson RS. 2006. Alcohol and work: patterns of use, workplace culture and safety. Injury Research and Statistics Series Number 28. (AIHW cat no. INJCAT 82) Adelaide: AIHW p 115

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implementing the policy, and should be specifically designed to accommodate the physical and industrial environment of the work organisation.56 Genetic Testing Genetic testing technology while very promising also has a lot of ethical perils, and though it is not that common in the workplace, it is predicted that it would likely become common.57 Some of the employers concerns such as health and safety of employees and economic factors such as sick leave, cost of temporary replacement or training permanent replacement, workers compensation and potential legal liabilities, and managing workplace environment, so an employee who has a genetic susceptibility to some genetic disorder, regardless whether it is work related or not, is a potential economic risk for employer at some point in the future. In order to minimize the risks employers may adopt testing for genetic predisposition to some diseases, alcoholism or aggression in the workplace context, relying on their predictive value.58 Because such reliance is based not on conditions that are present but on conditions that may or may not eventuate in the future, potential for unlawful discrimination is high. Genetic discrimination is defined as the differential treatment of asymptomatic individuals because of actual or presumed genetic differences.59 The Disability Discrimination Act60 includes the disability that may exist in the future or that is imputed, and now directly mentions genetic predisposition issue. But under the Equal Opportunity Act61 it is less clear as the definition of impairment does not contain a similar clause. There is always an exemption from operations of antidiscrimination provisions as discrimination based on inherent requirements of the job is justifiable with some limitations. However discrimination against asymptomatic56

Addopted from Pidd, K, Berry JG, Harrison JE, Roche AM, Driscoll TR, Newson RS. 2006. Alcohol and work: patterns of use, workplace culture and safety. Injury Research and Statistics Series Number 28. (AIHW cat no. INJCAT 82) Adelaide: AIHW pp 115-116. 57 MacDonald C & Williams-Jones B, Ethics and Genetics: Susceptibility Testing in the Workplace Journal of Business Ethics 235-241 2002.58

Otlowski M, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 910. 59 Taylor S, Treloar S, Barlow-Stewart K, Otlowski M & Stranger M, Investigating Genetic Discrimination in Australia: Perceptions and Experiences of Clinical Genetics Service Clients Regarding Coercion to Test, Insurance and Employment Australian Journal of Emerging Technologies and Society Vol. 5, No. 2, 2007, pp: 63- 83. 60 Disability Discrimination Act 1992 (Cth) 61 Equal Opportunity Act 1995 (Vic); but see s7 which may be sufficiently broad to cover discrimination on the grounds of genetic disposition to disability and have similar effect to the provisions in the Disability Discrimination Act 1992 (Cth); see also ss 100 and 101.

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employee based on their genetic mace-up may be illegal, and in cases of termination of employment employers may be liable for unlawful dismissal or new adverse action proceedings due to the operation of the Fair Work Act.62 Genetic testing in the workplace raises many issues. 63 One of them is validity of employees consent to undergo genetic tests as there are concerns about power imbalance in employer/employee or employer/prospective employee relationships, so the consent may not be really voluntary as it may be given out of fear of not being offered the job, or being dismissed or other detriment if consent were refused.64 Also, due to sensitive nature of genetic information there are privacy implications. Some of the privacy related concerns may be dealt with in existing contractual and equitable obligations where there is a contract of employment as employers have an implied duty of confidence and trust toward their employees65 and that duty should extend to confidentiality of employees genetic information. Though job applicants do not have contractual relationship with employers, their privacy would be protected as an employer also has an equitable duty to maintain the confidentiality.66 Use, storage and disclosure of employees personal information is also regulated by the Privacy Act 1988 (Cth) and other privacy legislations. There are also concerns in regards to privacy of employment records as they can be disclosed.67 There is a danger of genetic testing leading to exclusionary practices, and also to be seen as discriminatory where one of the major social dangers of genetic testing of workers is possible discrimination against certain groups of workers. This is because many inherited disorders are found predominantly in well-defined ethnic or racial groups.68 There is also potential for information gained from occupational genetic testing programs to be used improperly to influence job hiring or placement and that6263

Fair Work Act 2009(Cth) Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC Report 96) Published on 30 May 2003. Last modified on 30 September 2010. http://www.alrc.gov.au/publications/29-usegenetic-information-employment/competing-interests accessed on 5 may 2011. 64 Otlowski M, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 1213, 3940. 65 Blaikie v SA Superannuation Board (1995) 65 SASR 85. 66 M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart [4.4.1]. 67 Exemptions only applies to information held by an employer about its current and former employees, where that information is held in employee records, and its use or disclosure relates to the employment relationship with that employer. 68 Uzych L,Genetic Testing and Exclusionary Practices in the WorkplaceJournal of Public Health Policy, Vol. 7, No. 1 (Spring, 1986), p 49.

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health problems in workers associated with exposure to workplace hazards may be blamed instead on the faulty genes of genetically hyper susceptible employees. Consequently genetic explanations for ill health may be used as a means of diverting public attention away from unsafe working conditions and the associated need for potentially costly industrial hygiene programs.69

Conclusion The inability of drug testing to detect drug impairment as opposed to drug use sometimes in the past, which may also be in private setting, severely compromises its usefulness as a method of detecting risk to workplace safety (though some consider any drug use harmful to health and that it causes permanent harm which in turn may reduce mental and physical capabilities of the user, and therefore represent a risk for employers). While testing may be useful in settings where the detection of drug use is a priority, the limitations of on-site POCT screening devices needs to be recognised and factored in, so all positive screens should also be verified via laboratory tests. The increasing commercialisation of testing and the potentially negative consequences of testing in some settings also indicate the need for caution when considering testing, especially in the workplace.70 Whether drug use impacts on workplace safety is likely to be due to the intoxicating effects of the drug. It is suggested that testing for cause after an accident merely reveals that the person involved tested positive for previous drug use, it does not mean drug use played a causal role.71 However, because most workplace drug tests cannot determine intoxication, this is possibly one of the strongest objections to their validity and value in the workplace context. Effective workplace interventions need to adopt a comprehensive and integrated approach by incorporating aspects of policy, treatment, and prevention. Policy provides the foundation for the strategy, and treatment is necessary to provide a process for responding to workers with problems. But prevention should also go beyond individual workers to address systemic change by focusing on the physical and cultural workplace69 70

Ibid. p 50.

Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged accessed on 10 Jun 2011 71 Pidd K. Drugs and Alcohol Abuse and Testing of Workers for the Presence of Drugs and Alcohol , http://www.royalmedical.com.au/pdfs/8-NCETA_Report.pdf viewed on 14 May 2011.

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factors that may promote problematic alcohol use. It is submitted that more research is required in order to identify the types of responses that are likely to be suitable for different workplaces, and to examine the efficacy of these responses. In particular, the efficacy of workplace interventions needs to be evaluated not only in terms of any impact on the alcohol-related behaviours and attitudes of individual workers, but also in terms of economic and social benefit for employers and the wider community.72 It is recognised that genetic testing in the workplace context and presence of exclusionary policies (i.e. excluding women from jobs presenting possible exposure to known or suspected reproductive hazards) involves a large number of complex scientific, legal and ethical issues. The development of social and scientific guidelines by experts from relevant disciplines are recommended as a possible major mechanisms for achieving socially acceptable policies, laws and guidelines in the areas of genetic testing and exclusionary practices in the workplace. Due to some unresolved scientific and technologic issues there is a need for continuing epidemiological investigation and technologic research and continued investigative reporting could be an important factor associated with public awareness, informed public policy analysis, and resolution of the salient issues raised by these practices.73 Some arguments for genetic tests in the workplace include employee benefits, corporate responsibility, economic reasons for using genetic screening to select against prospective employees while protecting those already employed that have a susceptibility. There are also strong arguments against, such as concerns about justice and discrimination, scientific validity, privacy and potential for misuse.74 There are also calls that the community and all relevant sectors need to be informed about these issues, so that individuals are not openly or covertly coerced into undertaking genetic testing and that the potential for negative treatment in contexts like insurance and employment is monitored and proactively addressed.7572

Pidd, K, Berry JG, Harrison JE, Roche AM, Driscoll TR, Newson RS. 2006. Alcohol and work: patterns of use, workplace culture and safety. Injury Research and Statistics Series Number 28. (AIHW cat no. INJCAT 82) Adelaide: AIHW p 120. 73 Uzych L,Genetic Testing and Exclusionary Practices in the Workplace Journal of Public Health Policy, Vol. 7, No. 1 (Spring, 1986), p 53. 74 MacDonald C & Williams-Jones B, Ethics and Genetics: Susceptibility Testing in the Workplace Journal of Business Ethics 235-241 2002 p 237. 75 Taylor S, Treloar S, Barlow-Stewart K, Otlowski M & Stranger M, Investigating Genetic Discrimination in Australia: Perceptions and Experiences of Clinical Genetics Service Clients Regarding Coercion to Test, Insurance and Employment Australian Journal of Emerging Technologies and Society

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In order to incorporate best practice for alcohol drug or genetic testing it may be helpful to make sure that any such policy should addresses relevant matters under following sections:76 Policy Statement Aim and expected outcomes of the policy and applicable standards Scope of the policy Code of behaviour Roles and responsibilities Special circumstances Testing Discipline

Some of the best practice principles addressed in drug and alcohol testing are also applicable to genetic testing, and if adopted could minimize employers exposure for liability, and also protect interests of employees (so that they are not subjected to discriminatory practices and their privacy rights are protected). List of Statutes Australian Human Rights Commission Act 1986 Age Discrimination Act 2004 (Cth) Crimes Act 1958 (Vic) s 318. Disability Discrimination Act 1992 (Cth) Drugs, Poisons and Controlled Substances Act 1981 (Vic) Equal Opportunity Act 1995 (Vic) Fair Work Act 2009 (Cth) Occupational Health and Safety (Commonwealth Employment) Act 1991 Occupational Health and Safety Act 2000 (ACT) Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Act 2004 (Vic)Vol. 5, No. 2, 2007, pp: 63- 83. 76 Adaptation of WorkSafe Victoria guidelines for developing a workplace alcohol policy

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Occupational Health, Safety and Welfare Act 1986 (SA) Occupational Safety and Health Act 1984 (WA) Racial Discrimination Act 1975 (Cth) Road Safety Act 1996 (Vic) Sex Discrimination Act 1984 (Cth) Work Health Act 1986 (NT) Workplace Health and Safety Act 1995 (Qld) Workplace Health and Safety Act 1995 (Tas) List of CasesAnderson v Sullivan (1997) 78 FCR 380. Blaikie v SA Superannuation Board (1995) 65 SASR 85. Bliss v South East Thames Regional Health Authority [1987] ICR 700. Caltex v Australian Institute of Marine and Power Engineers (2009) 190 IR 130. G Robin v Worley ABB PR913493 (23 Jan 2002). Hall v Ulan Coal Mines Dec 710/98 S Print Q2174. Kidd v Linfox Australia Pty Ltd [2008] AIRC 398 (30 May 2008). Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Womens Memorial Club Ltd [2000] FCA 1619. Worden v Diamond Offshore General Company 1255/99 D Print S0242 (18 October 1999). Shell Refining (Australia) Pty Ltd VCFMEU [2009] AIRCFB 428. Seamen's Union of Australia v Port Waratah Coal Services Limited [2008] NSWIRComm 1096 (10 November 2008). Tony Selak and Woolworths Limited [2007] AIRC 786 (26 October 2007).

Bibliography"Alcohol and Other Drug Issues http://www.wahealtheducation.com.au/workshops-andtraining/detail/alcohol-and-other-drug-issues AIHW National Injury Surveillance Unit 2006. Alcohol and work: patterns of use, workplace culture and safety Cat. no. INJ 82. Canberra AIHW Carpenter, CS 2007. Workplace drug testing and worker drug use Health Sciences Research, vol. 42, no. 2, pp 795-810. Comer, D 2000. Employees' attitudes toward fitness-for-duty testing, Journal of Managerial Issues, vol. 12, no. 4, pp 61-75. Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC Report 96) Published on 30 May 2003. http://www.alrc.gov.au/publications/29-use-genetic-informationemployment/competing-interests Gibson F. Drugs, discrimination and disability (2009) 17 JLM 400-411. ILO Management of alcohol- and drug-related issues in the workplace www.ilo.org/wcmsp5/groups/.../---ed.../wcms_107797.pdf

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MacDonald C & Williams-Jones B, Ethics and Genetics: Susceptibility Testing in the Workplace Journal of Business Ethics 235-241 2002. Otlowski M, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart. Pidd K. & Roche A. Workplace drug testing: caution urged http://www.cla.asn.au/0805/index.php/articles/2009/workplace-drug-testing-caution-urged Pidd K. Drugs and Alcohol Abuse and Testing of Workers for the Presence of Drugs and Alcohol http://www.royalmedical.com.au/pdfs/8-NCETA_Report.pdf Pidd, K, Berry JG, Harrison JE, Roche AM, Driscoll TR, Newson RS. 2006. Alcohol and work: patterns of use, workplace culture and safety. Injury Research and Statistics Series Number 28. (AIHW cat no. INJCAT 82) Adelaide: AIHW Stewart A, Stewarts Guide to Employment Law, (3rd Ed) The Federation Press 2011. Taylor S, Treloar S, Barlow-Stewart K, Otlowski M & Stranger M, Investigating Genetic Discrimination in Australia: Perceptions and Experiences of Clinical Genetics Service Clients Regarding Coercion to Test, Insurance and Employment Australian Journal of Emerging Technologies and Society Vol. 5, No. 2, 2007, pp: 63- 83. Tooma M, Toomas Annotated Occupational Health and Safety Act 2004 Victoria, (13th Ed.) Lawbook Co, 2005. Uzych L,Genetic Testing and Exclusionary Practices in the WorkplaceJournal of Public Health Policy, Vol. 7, No. 1 (Spring, 1986). Walsh, JM 2008. New technology and new initiatives in US workplace testing. Forensic Science International, vol. 174, no. 2-3, pp 120-140. WorkSafe Victoria ALCOHOL IN THE WORKPLACE - Guideline s for developing a workplace alcohol policy 1st Edittion May 2005.

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