When Employers Look the Other Way

Some employers turn a blind eye to drugs and alcohol in the workplace and the substance abuse problem plaguing Australia. The fact this can have dire consequences on the health and safety of workers is well understood. However, the consequences of ignoring substance use or abuse in the workplace can also impact management personally by raising risks of lawsuits or even leading to loss of jobs when productivity declines or injury rates increase and harm the company’s brand as well as employee health. This perspective is not often discussed except amongst attorneys and policymakers. When employers look the other way when detecting signs of drugs or alcohol in the workplace, or when they neglect to develop policies and procedures, unexpected consequences can result.

Many employers are reluctant to face the consequences of drugs, and as a result have never bothered to institute a drug and alcohol policy. The case of Doug Smith v BHP Billiton Pty Ltd [2010] FWA 3349 is a good example as to why this is a poor practice. An employee was expecting a substantial redundancy payment, but three days before payment the employee failed an alcohol breath test. As a result, he was dismissed. The employee then filed an unfair dismissal claim claiming the dismissal led to consequences that were “hard, unjust or unreasonable.” The employer defended itself by pointing out the employee had breached the Drug and Alcohol Policy which made it clear a positive test could lead to employment termination. Since the employer could prove the policy existed and the employee was aware of it, the case was dismissed. Practically speaking, businesses that fail to institute a Drug and Alcohol Policy are failing to comply with workplace health and safety standards. Fair Work ruled the employer had a right to take immediate action to protect workplace safety.¹

How to Ignore Substance Abuse and Increase Liability

There are hidden costs to ignoring drugs and alcohol. It is estimated that just alcohol misuse costs over $6 billion per year in lost productivity. ² However, there are other consequences that seldom come up in discussions. There is a concept called “derivative liability” in which staff actions lead to senior managers and board members having liability for those actions. Not developing policy and procedures is just one way employers create personal liability from lack of accountability. Others include:

• Refusing to recognise the high rates of drug and alcohol abuse in Australian society, so not using due diligence in hiring practices
• Ignoring common workplace talk about weekend binges or drug use, so failing to address safety issues as applicable to the workplace
• Not screening job applicants at the pre-employment stage
• Not offering safety training or not including discussions of workplace safety risks introduced with substance abuse
• Not administering a random drug and alcohol program or not rigidly following a testing procedure, sending a message that substance abuse is not a management concern
• Not training supervisors in administration of drug and alcohol procedures that do exist, nor training them in the detection of substances and appropriate responses to workers suspected to be under the influence
• Taking no action when workers test positive for drugs or alcohol, sending a message to workers that it is not important
• Ignoring indications of substance abuse, like drug paraphernalia
• Laughing along with workers discussing weekend parties where substances were used
• Attending after-work pub sessions with subordinates
• Providing free alcoholic drinks at work-related parties or allowing workers to bring their own (then laughing the next day with workers talking about how intoxicated John and Mary were at the party)

Workers will take their cues from management. If management does not enforce a substance free workplace, then there is a high probability that drugs and alcohol are present. If a worker is injured and can prove a co-worker’s drug or alcohol use was a factor, it is assured two things will occur. First, the employer will be held responsible for failing to maintain a safe workplace. Second, a terminated substance abuser will likely be reinstated after proving a workplace culture of tolerance exists. This means the employer is “stuck” with a worker known to be a substance abuser until some incidence happens again.

Running from the Statistics

Employers looking the other way when drugs or alcohol is involved are creating a liability for themselves. It is simply not a good way to run a business. Managers and supervisors can also expect that the statistics will one day catch up with them. As injury rates rise and productivity declines, the board of directors, management, and company brand and reputation are at stake.

With the availability of onsite drug and alcohol screening services available at any location through Mediscreen (mediscreen.net.au), all employers can enforce a substance free workplace policy. Mediscreen has taken the effort out of ensuring the testing process adheres to Australian law and standards and that appropriate documentation is maintained.

 This article has been taken from : http://www.mediscreen.net.au/when-employers-look-the-other-way/