Drugs & alcohol and fitness for work?

“Line managers aren’t doctors and for them to determine workers’ fitness for work based on drug and alcohol test results can have serious ramifications…” Dr Rob McCartney told OHS Alert when he was interviewed in the lead-up to the 2017 ANSZOM Meeting.

OHS Alert has kindly allowed us to reproduce the article :

How to avoid legal risks in drug and alcohol testing

Line managers aren’t doctors and for them to determine workers’ fitness for work based on drug and alcohol test results can have serious ramifications, according to an occupational and environmental physician.

Dr Rob McCartney from occupational health service Resile is speaking at the Australian and New Zealand Society of Occupational Medicine’s Annual Scientific Meeting in Fremantle, Western Australia later this month on how to manage workplace drug and alcohol testing while avoiding a “minefield” of associated medicolegal risks.

McCartney is also a board member of the Australian Medical Review Officers Association, an expert in managing drug and alcohol issues in the workplace, and has provided expert testimony to numerous legal forums.

He told OHS Alert that Australia has some of the highest rates of illicit substances use in the world and it is very likely that most large workplaces will have a few people who are struggling with drug and alcohol misuse, often associated with psychological problems.

This can have ramifications for workplace safety. There is some evidence that workers who misuse drugs or alcohol are at a high risk of workplace injuries, illnesses and fatalities. A company that ignores the issue or does not have a good drug and alcohol policy could be seen as negligent from a health and safety and legal perspective, he says.

As a part of a comprehensive policy, employers might implement a drug testing regime, but doing so without appropriate consideration could in itself create a risk for the employer. It is essential that the employer ensures that any such testing program is carried out “ethically, fairly and with appropriate privacy and respect for individuals”, McCartney says.

Other best practice components of a workplace drug and alcohol program are education, training, case management and, where appropriate, rehabilitation, he says.

McCartney says some vital points employers should know about drug and alcohol testing include:

1. The need to utilise appropriate medical experts. Medical review officers (MROs) are trained to ensure employee drug testing is done lawfully and effectively, and can “stand up to the rigours of an anti-discrimination or Fair Work Australia claim”. Additionally, occupational physicians are court-recognised specialists to assess fitness for duty. “Line managers are not doctors, they are not experts in fitness for duty and they shouldn’t be dismissing people on grounds of health when they haven’t got all the information,” McCartney says.
2. Collecting medical information is specifically covered by privacy laws and it’s important to protect the privacy of workers who submit to drug tests.
3. Workers are required to declare any medication they’re taking during the testing, but employers must be cautious when obtaining this information. It is inappropriate for managers or HR personnel to see that information, which might occur if testing agencies send results directly to the employer.
4. Workers using prescribed or over-the-counter medication might not test positive in a drug test, but that doesn’t necessarily mean they are fit for work. On the other hand, some substances of abuse are used for genuine therapeutic reasons.

An MRO assists organisations in interpreting results and answering the complex questions of fitness for work while protecting an individual’s privacy, McCartney says.