The report by the Victorian Legislative Council Legal and Social Issues Committee on its inquiry into 'workplace drug testing in Victoria' features the following findings and recommendations
Workplace drug testing: its effectiveness and impact on employees
FINDING 1: The current workplace drug testing approach focuses on drug presence. The methods used do not test for impairment.
RECOMMENDATION 1: That the Victorian Government support the principle that in non‐mandated industries, drug testing should only occur where employers have a well‐founded belief that an employee may be impaired at work and should only then occur in the context of a comprehensive, alcohol and other drug policy and accompanying support framework as agreed by employers and employees within a workplace relations context.
FINDING 2: Employees may consider prescription medication such as benzodiazepines and opioids a safer option than medicinal cannabis, despite the fact they may cause greater impairment and be more addictive.
Reform to legislation and alcohol and other drugs policies
RECOMMENDATION 2: That the Victorian Government amend the Occupational Health and Safety Act 2004 and/or regulations to state key principles around alcohol and other drugs testing, including prescription medication. These principles should include, but not be limited to, the rights of workers to privacy and dignity, a commitment to workplace education, appropriate support measures and when and how alcohol and other drugs testing can or should be carried out.
RECOMMENDATION 3: That the Victorian Government amend the definition of discrimination in Section 7 of the Equal Opportunity Act 2010 to clarify that where a person uses prescription medication or requires medical treatment for a disability, this is a characteristic that a person with that disability generally has.
FINDING 3: Alcohol and other drugs policies vary because they depend on the workplace and the nature of work in each workplace. However, the absence of specific guidance from WorkSafe on some issues – including medicinal cannabis – has resulted in uncertainty and therefore inconsistencies in the approach taken by different workplaces.
RECOMMENDATION 4: That WorkSafe update its advice on alcohol and other drugs policies with information on medicinal cannabis, in particular that it should be considered in the same way as all medications that cause impairment. The advice should include but not be limited to: • The legal status of prescribed medicinal cannabis • The difference between CBD and THC • The relationship between the presence of THC and impairment • When employees should be required to disclose that they are taking medicinal cannabis.
RECOMMENDATION 5: That WorkSafe convene a working group consisting of industry stakeholders including employees and employers’ representatives, government departments, and public sector Alcohol and Other Drug (AOD) providers to: a. Update the ‘Guide for developing a workplace alcohol and other drugs policy’ which is no longer it‐for‐purpose. b. Develop a Compliance Code covering, but not limited to: • Obligations of employers and workers in relation to impairment and safety at work, including the right to privacy and dignity, • General awareness training of impairment, • Appropriate policies and procedures, • Obligations and rights of HSRs to provide a health led response to impairment, • Reasonable workplace adjustments in the workplace for impairment, and • Advice on available alcohol, drug and gambling support. The Compliance Code should be accompanied by a complementary and comprehensive education campaign, emphasising a health‐based approach to AOD in the workplace, and the development of a Health and Safety Representative refresher training program.
RECOMMENDATION 6: That WorkSafe establish a framework to ensure that workplace drug policies are communicated in a clear and easily understandable manner which is visible and accessible to all employees.
RECOMMENDATION 7: That WorkSafe investigate impairment testing methodologies, including the results of the current medicinal cannabis closed track driving trial, and publicly advise on their applicability to workplace drug testing.
