HC chats to an employment lawyer about the legal complexities of developing an effective workplace drug policy.
Drugs and alcohol in the workplace can have a devastating impact on business operations and expose employers to costly legal claims, therefore it is essential that companies implement a strong drug and alcohol policy to help reduce safety risks and discharge health and safety obligations.
With national data showing alcohol and other drugs drain up to $6 million dollars from Australian workplaces each year due to lost productivity, many employers are reviewing their workplace drug and alcohol policies.
Simon Clayer, Senior Associate with HopgoodGanim says employers who don’t step up to prevent drug and alcohol impaired employees from endangering other staff may be liable for the actions of those employees.
“Drugs and alcohol in the workplace can cause a range of significant problems for employers who have a general 'duty of care' obligation under health and safety laws to ensure that, as far as practicable, workers are not exposed to hazards and risks,” Clayer told HC Online.
“As such, an employer may be held liable for any negligent or wrongful acts committed by a drug or alcohol-impaired worker unless the employer takes all reasonably practicable steps to prevent the behaviour,” he says.
“For these reasons it is important for employers to implement a drug and alcohol policy for the workplace.”
Clayer says employees who are affected by drugs and alcohol can negatively impact the safety, productivity, harmony and culture of a business.
While addressing drug and alcohol use in every workplace is clearly important in productivity terms, employers in high-risk industries such as building and construction and those who operate heavy machinery need to take extra care to prevent their workers from risk.
“There are two key issues to consider: the increased prevalence of drug and alcohol use and what impact this has on the risk to an employee’s health and safety in the workplace,” Clayer says.
“Obviously blue collar workers using machinery or working at height are going to be at a much higher risk of injury compared to office-bound workers,” he says.
Clayer says HR professionals need to be aware of the legal complexities involved in developing a workplace policy on drug and alcohol use.
“Developing a drug and alcohol policy is a very sensitive issue as it covers two competing workplace interests: private behaviour by an employee versus taking all available measures to ensure a safe working environment,” he says.
He says one of the most common mistakes employers make when developing a workplace drug and alcohol policy is placing too much focus on drug and alcohol use, rather than on impairment and fitness for work.
“Fitness for work means a person’s capacity to work without risk to themselves or others’ health and safety,” he says, adding that many things can affect fitness for work, including stress, depression, anxiety and fatigue.
Clayer recommends any employer considering drafting a drug and alcohol in the workplace policy consider the following guidelines:
- Develop the policy in consultation with all stakeholders in the workplace such as unions, workers, and health and safety representatives;
- Apply the policy equally to all workers across all levels of the business;
- Clearly state what is acceptable behaviour and the consequences of any unacceptable behaviour;
- If the policy includes testing, describe the testing protocols and procedures; and
- Ensure the policy is clearly communicated to all members of the workforce.