Everybody agrees that drug and alcohol use in the workplace is a serious safety issue.

And when it comes to safety, unions understandably press employers to manage any issues and hold them accountable in doing so. But, when it comes to managing drug and alcohol at work, many unions have struggled to walk the talk.

Recently, the CFMEU announced its proposal for an impairment policy in the construction industry which will, for the first time, include mandatory drug and alcohol testing. The CFMEU’s abrupt turn-around was widely reported and will no doubt be welcomed by employers in the construction industry. It’s a significant departure from previous positions – just last year the CFMEU described mandatory drug and alcohol testing at work sites as a “slur” on construction workers, and in January it was criticised by the FWC for attempting to “defend the indefensible”when it represented a member in unfair dismissal proceedings after she tested positive for methylamphetamine.

But the CFMEU’s new stance is not an answer to the difficulties employers confront in managing these complex issues. Our clients are invariably seeking to implement best practice when it comes to identifying and eliminating workplace risks. Safety is not an area where employers can accept compromise. They tell us that they want to retain the capacity to decide who can be in a workplace and the consequences of any breach of their requirements.

The legitimate objectives continue to be at odds with the new approach.

Is “impairment testing” the best method?

The new approach advocates testing for impairment (whether from drugs and alcohol, fatigue, stress or any other cause), rather than testing for the presence of drugs or alcohol. The argument is that testing for use is an intrusion on an employee’s privacy; that the legitimate boundaries of an employer’s interests end with whether a person is affected at work. It’s on this basis that biological testing (urine, blood, saliva, breath etc) is generally opposed as being unnecessarily intrusive and impinging on an employee’s private life.

But if impairment testing is not the best way to ensure health and safety of employees and others at work, then employers should be testing for drug and alcohol use. The impairing effects of drugs and alcohol depend on the particular individual and circumstances. Impairment is not always easy to identify, there is inconclusive research on specific drugs and the lack of current knowledge about the effects of drugs on workplace performance makes it difficult to assess risk. What is clear is that this testing method is imperfect.

For these reasons, we do not accept impairment testing as the best method on our roads (and have not done since the end of field sobriety testing). Why would we accept it in our workplaces?

It is important to recognise that employers are not trying to regulate employees private lives by implementing testing for the presence of alcohol and drugs. They are trying eliminate the risks arising from drug and alcohol use at work as far as possible – by stopping people taking the potential risk at work. The Fair Work Commission has recently supported the use of urine testing. The FWC found that the detection and deterrent benefits of adopting both saliva and urine testing outweighed any argument that urine testing would be an unnecessary imposition on privacy.

What are the consequences of a positive test?

A further area of controversy is how employees who fail drug and alcohol tests should be treated. This typically occurs in circumstances where an employee has presented for work and a test identifies the presence of drugs or alcohol in his or her system in breach of policy. Had the test not occurred then the employee, knowing that he or she has been using drugs or alcohol, would have proceeded to work. The controversy arises where the employer takes disciplinary action as a result of the breach.

As recently as this week, the FWC has reinforced many earlier decisions to the effect that drug and alcohol policies must be clearly communicated and consistently enforced to support disciplinary action, even where the employer considers the misconduct poses a “serious and imminent” risk to safety (and in fact did harm a number of the employer’s chickens).

However, even where appropriate policies are in place, many unions have contested the punitive consequences of an employee failing a drug test. The CFMEU’s recent announcement emphasised that the regime wasn’t punitive, but was instead about “providing support.” There is no question that support should be provided to employees who need help managing addiction. Many employers have assistance programs to do this and public programs are readily available.

But employers cannot ignore the legitimate need for all employees to comply with policies directed at avoiding exposing workplace participants to health and safety risks, or a deliberate decision on the part of an employee to expose workplace participants to potential risks. A risk is a serious matter regardless of whether or not it materialises.

While a safe and healthy workplace should provide assistance for people with health issues so far as practicable, this is not a sound rationale to limit the disciplinary consequence for what is a serious safety breach. The appropriate sanctions will depend on the workplace and the nature of the duties involved and the circumstances. However, there are circumstances where a positive result in breach of a zero tolerance policy warrants dismissal.