Drug Testing in the Workplace

Drug testing of employees is a reality in an number of industries in Australia. However, employers do not have an automatic the right to drug test employees under any circumstances. It is generally accepted by industrial courts and tribunals in Australia that random drug testing is an intrusion on the privacy of the individual. There are exceptions, however, on work, health and safety grounds.

Under work, health and safety legislation, an employer can legitimately introduce drug testing in the workplace if they can argue that it is needed as a duty of care to all employees to try to ensure no employee works under the influence of drugs or alcohol. Beyond that, no employer has the right to dictate what drugs or alcohol its employees use in their own time.

For more information on drug tests, and a rough guide for how long substances can be detected in a urine test, check out our Drug Testing Frequently Asked Questions.

What type of employers do random drug testing?

You are more than likely to be randomly tested if you work in manufacturing using heavy machinery, mining industry, transport industry, heavy vehicles, or passenger transport, or work in Corrections.

Can I refuse a test?

If your employment contract explicitly outlines a company policy requiring employees to submit to random or regular drug testing and you refuse, it could be argued to the Fair Work Commission that you refused to obey a lawful and reasonable direction given to you by your employer. This may be grounds for dismissal.

What if I test positive?

If you do submit and test positive, this doesn’t mean you will automatically be sacked. The Fair Work Commission has set down guidelines that employers must follow. Your employer must discuss with you that you tested positive and develop an action plan in response.

In most cases, if you test positive you will receive formal counselling. If you continue to fail future drug tests your employer will then enter into a procedure that may result in your termination. You can visit SafeWork NSW for more information.

What if the results are wrong?

Drug tests are not 100% accurate and if you believe a positive result is wrong you can ask to be retested. You also have the right to challenge a decision you feel is wrong. If you are a union member, you may be able to get assistance from them or you can speak to a lawyer for legal advice. The Community Legal Centre website has a list of where you can get free legal advice.

You can read more about the law, drug testing and the workplace at Fair Work Legal Advice.