Can An Employee Refuse A Drug Test?

So your employee has refused a drug test. You are probably thinking — is this even possible?

You’ve seen the figures: employee drug and alcohol use costs Australian businesses $6 billion per year in lost productivity.

As an employer, you have every right to perform drug and alcohol testing. This is true not just in high-risk industries such as construction, mining, transportation and aviation, but in all industries across Australia.

Beyond the already stated financial losses, it is your legal obligation to provide a safe and healthy work environment for your employees.

Especially when you consider the effects of drug and alcohol use at work — lack of focus, poor concentration, aggression, unstable moods, lack of coordination, and unwanted sexual advances.

Clearly none of us wants an employee to exhibit these highly inappropriate behaviours. We also don’t want anyone else on our team to experience such bad behaviours from their coworker.

What To Do If An Employee Refuses To Be Tested

Legally, speaking, you cannot force an employee to undergo a test if it’s against their will. Doing so could lead to civil liability.

Trying to reason or threaten your employee will rarely have any positive results. At best you’ll get a definitive ‘no’ from your worker. At worst you’ll cause a revolt and outright destruction in your entire team.

It is best to stick to well established rules and procedures. This is where a well-written and clearly-worded drug and alcohol policy comes in.

David Dilger, an employment and safety lawyer at Edge Legal, believes companies could insist on drug testing as part of employment as long as it is reasonable.

Workers don’t necessarily have to see any mentions of an alcohol and other drugs policy in their contract. They could find something like ‘you’ll comply with our policies and procedures as lawful and reasonable direction’.

An employee has to comply to a workplace drug test, provided that it is a lawful and reasonable direction, Dilger expplained. If they were to refuse, they could face disciplinary action and might even lose their job.

In some cases, a worker can get fired not because they failed a drug test but because a court or tribunal found them to be non-compliant with a reasonable policy.

Dilger added that more modern alcohol and other drugs policies prioritise work health and safety rather than penalising employees.

Workers who refuse to participate in drug testing could be considered in breach of their duty. Their employers might take their refusal to be going against a policy meant to ensure the safety of their workplace.

Review Your Drug and Alcohol Company Policy

As an employer, your workplace drug and alcohol policy must indicate clearly the reasons for subjecting an employee to a drug test. For instance, the improvement of productivity, the safety of the operations, and maintaining good health.

You have to make sure that your policy also specifies the consequences a worker might face if they were to refuse testing.

Every employee should have signed the workplace drug and alcohol policy, understanding and agreeing to a drug test for justifiable reasons.

In Australia, it is perfectly legal to conduct workplace drug testing at work. However, crucial to effectively enforcing it is establishing a workplace drug and alcohol policy beforehand.

Why? Because it is important that your employees are aware of the following:

  • Reason for drug tests
  • Who will do the testing
  • Drug testing schedules
  • How often the drug test will be carried out
  • Drug test types
  • Accepted blood alcohol limits
  • What to do in the event an employee tests positive for drugs or exceeds accepted limit for alcohol
  • Disciplinary measures for employees who will refuse to be tested

This is legally the only way to go about drug testing. The methods, frequency and consequences must be clearly stated. Every employee should be fully aware of these guidelines. Meanwhile, as an employer, you have to follow all of the things you’ve outlined in your drug and alcohol policy.

Similarly, if you update your processes, you must reflect the changes in your policy, inform everyone affected and have proof you have done so.

What If I Do Not Have A Legally Binding Workplace Drug And Alcohol Policy?

If you do not have a sound drug testing framework for your workplace, you simply cannot enforce any kind of drug testing. Even if an employee tested positive, you would likely not be able to apply any kind of consequences.

One of the best ways to do this is by teaming up with an experienced workplace drug and alcohol testing provider.

Having a capable and reliable drug testing partner can help protect your company from liabilities related to workplace substance abuse. It can also make your workers feel more comfortable and trusting of your policy.

Drug and Alcohol Testing at Work

Safework Health will help you safeguard your business and employees from drug and alcohol-related incidents at work.

We will help create a comprehensive drug and alcohol policy for your company that includes:

Moreover, our fast turnaround times for drug testing results mean minimal downtime on your operations.

Whatever your circumstances, contact us today for a confidential discussion.

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