Do you have to take a drug test at work?

Man holding urine sample

If your boss wants you to take a drug test do you have to do it? And if your test is positive, can your employment be terminated?

Unfortunately, drug use is becoming more common in the community so there are risks that more people affected by drugs will be in workplaces too.

But does your employer have the right to request an alcohol or drug test from you?

Drug testing policies in the workplace are most widely implemented in industries where you are required to operate heavy machinery or there is a large safety aspect to the job.

Employers want to ensure a safe workplace but employees do not want undue interference in their personal lives.

These competing factors must be considered when determining whether the testing is just and reasonable.

Courts and tribunals have found that random drug and alcohol testing is an intrusion on an individual's privacy.

An employer has no right to dictate what alcohol or drugs an employee might take in his or her own time. However, an employer has an obligation to provide a safe place of work and therefore has a right to eliminate the risk someone could work while drug or alcohol-affected. Therefore, testing can be justified on health and safety grounds, depending on the nature of the work.

If the work performed is potentially hazardous, then random drug and alcohol testing could be justified. If an employer suspects you are under the influence at work they can require you to undergo testing and that direction can be reasonable and lawful depending on a few things including the nature of the particular work and the industry concerned, the terms of employer's policy and if there are privacy safeguards in place. Employers must also provide clear information on their alcohol and drug testing policies.

If an employer is seeking to perform this testing then they should consult their workers, the relevant trade union and consider the International Labour Organization Code of Practice for the management of alcohol and drug related issues in the workplace which recommends multiple approaches to prevention, assistance, treatment and rehabilitation.

If an employee is approached by their employer for a drug or alcohol test, and their contract of employment or a company policy requires them to comply and they do not, then the Fair Work Commission could find that the employee has refused to obey a lawful and reasonable direction by the employer and a termination of employment, if that eventuates, may be valid. You are permitted to request your own doctors do the testing, rather than a company doctor.

A positive drug or alcohol test result may be a valid reason for dismissal; however, tribunals will consider the circumstances surrounding the test to determine if it is an unfair dismissal. The issue of honesty and trust will also come into account so perhaps the positive drug test alone is not enough to warrant dismissal but if you lie during the investigation about drug use or provide a fake sample then a dismissal may be valid.

Drugs can have a significant impact, both direct and indirect, on workplace health and safety. There is also an enormous cost to businesses in absenteeism, injuries and lost production.

If you suspect a colleague is misusing a substance you may have a duty of care to report them depending on the industry you work in for example medical or construction industries.

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