Should Off Duty Employees Submit to Drug Testing?

Just recently, ABC news reported that the Australian Federal Police Association (AFPA) has suggested that off duty police officers should submit to drug tests. These drug screen tests would be in addition to the testing done while they are at work. The AFPA association president Jim Torr was quoted as saying, “Our members are eager to demonstrate as they always have been, to the public, how accountable they’re prepared to be and this demonstrates that illegal drugs are not something that federal police use.”2

The question of whether employers have a right to invade a person’s privacy when that person is not working is an issue that is just beginning to come to the surface. Workplace drug testing is a sensitive issue now and the move towards testing of off duty personnel is sure to raise a firestorm once it goes beyond public employees. It is easier to understand why the policeman or fireman should be drug tested while off-duty than it is for the office worker.

Safe Work Australia points out the acute and chronic symptoms of substance and alcohol abuse that can lead to health and safety issues at any place of employment.3 Chronic symptoms are most likely developed through steady use of illicit drugs and alcohol whilst off duty and quite possibly while on duty. In other words, chronic substance abusers don’t develop the long term symptoms due to strictly using drugs or alcohol at work. They are often abusing substances out of work hours and possibly in work hours too. The chronic symptoms merely become apparent while the employee is working.

Though hospital workers, truck drivers and miners are not public employees, they can certainly put as many other people at risk of injury or of being the victims of poor judgment as the public employees using alcohol or drugs. So the question is whether these non-public employees should be tested while off-duty as well. Studies have shown that 2.5% of the Australian workforce shows up at work while under the influence of illegal substances. 3

As the trend moves towards the testing of off-duty workers, there is sure to be a lengthy discussion on the privacy issue. But employers are expected to do all they can to protect the health and safety of employees while working. One approach is to limit off-duty testing to private employees who have a high level of responsibility for the health and safety of other people. This would exclude office workers but include nurses or miners for example.

A second approach is to implement random off-duty drug and alcohol testing when an employee gives an employer a reason to believe that drugs or alcohol are being used while not working. But as of now it is incumbent on the employer to show that the off-duty conduct harms the interests of the employer and that the conduct is incompatible with the employee’s duties and responsibilities. This harkens back to the Roe v Telstra Australian Industrial Commission (AIRC) finding1.

Your company can use testing equipment like the Redline Disposable Breathalyser or the Oraline Saliva Drug Test and take the testing to the off-duty employee location. Or you can use the identical testing equipment like the Alert J5 Personal Breathalyser currently used by law enforcement, healthcare and industrial safety professionals to test clients in the field and require the off-duty employees to come in to work and be subjected to the same sort of testing they are administering to clients. The testing equipment you choose needs to give rapid results to make the testing process as quick as possible since you are testing employees who are off-duty.

It would be fully expected that off-duty or out of hours drug testing will be implemented by more and more employers in the coming months and years. It is also expected that employers will have to be able to connect the need for off duty drug testing directly to employee and client health and safety balanced against privacy issues.

CMM Technology at www.cmm.com.au offers a variety of easy-to-use reliable drug and alcohol testing equipment options. If considering implementing an off duty employee drug testing program, CMM Technology can help in several ways including choosing the best testing equipment and revising testing policies and procedures.

References

1. Nolen, J. (2000). Employee Privacy in the Electronic Workplace Pt 2: Drug Testing, Out of Hours Conduct and References. Retrieved January 26, 2011, from Privacy Law and Policy Reporter: http://www.austlii.edu.au/au/journals/PLPR/2000/61.html#Heading5

2. Off-Duty Police Could Face Drug Testing . (2011, January 15). Retrieved Janury 26, 2011, from ABC News: http://www.abc.net.au/news/stories/2011/01/15/3113636.htm?section=justin

3. Safe Work Australia. (2007, March). Retrieved January 26, 2011, from Safe Work Australia: http://www.safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Documents/334/WorkRelatedAlcoholAndDrugUse_AFitForWorkIssue_2007_PDF.pdf

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