There has been an increasing tendency by employers to try to exercise power over their employees in the form of compulsorily-imposed tests for consumption of alcohol and other drugs.

There are some circumstances in which a genuine need exists to do so. But those circumstances are highly unusual, and many employer initiatives are ill-judged and excessive. Meanwhile, proponents of testing, including technology providers, have made dubious and insufficiently tested claims about its effectiveness, and have made incredible statements to the effect that the enforced extraction of swabs is non-intrusive.

As long ago as 1992, the then NSW Privacy Committee concluded (NSWPC 1992) that “unless specifically authorised by legislation, workplace [substance abuse] testing should only take place when:

  1. a person’s impairment by [a substance] would pose a substantial and demonstrable safety risk to that person or to other people; and
  2. there is reasonable cause to believe that the person to be tested may be impaired by [a substance]; and
  3. the form of [substance abuse] testing to be used is capable of identifying the presence of a [substance] at concentrations which may be capable of causing impairment”.

The 20-year delay in the imposition of appropriate regulatory measures cannot be allowed to continue.

APF Policy Statement on Substance Abuse Testing and the Workplace

Foundation Principles

  • Intrusions into physical privacy are very serious privacy invasions
  • Interferences with human behaviour are very serious privacy invasions
  • Interferences by an employer that extend beyond the workplace are even more serious
  • Employers have no business performing law enforcement roles
  • In such circumstances, justification, proportionality and transparency are critical

Process Matters

Substance abuse testing must not be imposed unless all of the following pre-conditions have been fulfilled:

  • a privacy impact assessment (PIA) is undertaken in advance of any commitment being made to impose substance abuse testing
  • the PIA process includes consultation with representatives of and advocates for the categories of affected people
  • the justification is exposed in advance, and subjected to examination
  • in particular, sufficient detail is made available concerning:
    • the workplace risks that it is intended will be addressed by the testing
    • the nature, incidence and severity of those risks
    • expert review of evidence of the effectiveness of the proposed testing in addressing those risks
    • alternative methods that have been considered as ways to address those risks
    • comparative assessment of those alternative methods
  • after examination, it is reasonably concluded that substantial and specific justification has been demonstrated to exist, sufficient to justify the seriousness of the privacy intrusions
  • the privacy intrusions are proportionate to the need
  • all privacy intrusions that are found to be justified are the subject of mitigating measures to reduce their negative impacts

Notice

Where substance abuse testing is imposed, explicit and clear information must be given to employees in relation to the following matters:

  • the specific purposes for which it is being imposed
  • the circumstances under which it will be imposed
  • the procedures involved in:
    • extracting the sample
    • extracting data from the sample
    • using the data
    • storing and destroying the sample
    • storing and destroying the data
  • the employer’s responsibilities
  • the employee’s rights
  • the uses to which the resultant samples and data may be put
  • any disclosures that the resultant samples and data may be subject to

Actions

  • All actions taken as a result of substance abuse testing procedures must be:
    • justified
    • proportionate
    • subject to controls, challenge, review and audit