Managing the Minefield – Drug and Alcohol Testing
General / 25 October 2016
New Alcohol Limits
Changes are coming. The Land Transport Amendment Bill 2013 passed its third and final reading on 30 July 2014.
The Bill decreases the legal breath alcohol limit for adult drivers from 400 micrograms (mcg) to 250 mcg per litre of breath. The blood alcohol limit will reduce from 80 mg of alcohol per 100ml of blood, to 50mg.
Drivers who fail an evidential breath test between 251 and 400 mcg of alcohol per litre of breath will receive an infringement notice with a $200 infringement fee and 50 demerit points. Those over 400 mcg will continue to face criminal sanctions as is currently the case.
The lower limits will apply from 1 December 2014.
The zero alcohol limit for drivers under the age of 20 years remains the same.
Drug and Alcohol Policy
If you already have a Drug and Alcohol policy in place in your workplace, take some time to compare the limits you have with the changing law; if they are 400 mcg or over, consider amending these to reflect the new limit of 250mcg. In an inherently dangerous workplace it could even be justified to have a zero tolerance to alcohol.
If you don’t have a policy, consider putting one in place. Under the Health and Safety in Employment Act 1992 an employer is required to take all practicable steps to ensure the safety of their employees, contractors or visitors while in the workplace. The Courts have concluded one practicable step is to have a drug and alcohol policy for your workplace, especially in a safety sensitive work environment.
Stuck with what to put in a policy? Consider pre-employment testing, reasonable cause, post incident/accident and random testing for both drugs and alcohol. Please note random testing should only be conducted on employees who are in ‘safety sensitive’ positions. A policy should comprehensively set out when, how and what you will be testing for, what will amount to a positive test and how will a positive test be treated.
While important from a safety perspective, the Court has determined that drug and alcohol testing is inherently invasive and compromising of an employee’s dignity and privacy. Before putting a policy in place or amending a policy you MUST consult with your employee’s.
Consultation involves more than merely notifying your employees of a document; you must provide your employees with an opportunity to comment and respond in a meaningful way and give them a reasonable opportunity to do so. You are then expected to make a genuine effort to accommodate the views of your employees.
Failure to make a comprehensive policy or consult with your employees will result in an invalid policy. Any subsequent testing in reliance on an invalid test would be unjustified and you will likely face challenge.
If you require any assistance in creating a workplace policy, amending your current policy or consulting with staff the team are happy to help.
Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.