Q: We recently implemented a drug and alcohol policy, and want to start with random drug-testing. The drug-testing company advised us to test a minimum of 10% of our workforce each time. We would prefer to test fewer people than this, concentrating mainly on our outdoors workers who are at greater risk if affected by drugs or alcohol.

Can we do this? Could this be some form of discrimination?

A: Other than in relation to federally funded construction projects or mining, there is no explicit legislative entitlement or requirement to conduct drug testing in the workplace. However, the legislative basis to introduce drug testing in the workplace arises from the health and safety duties imposed by the Work Health And Safety (National Uniform Legislation) Act 2011 (NT) (the Act), including:

• the primary duty of care on a person conducting a business or undertaking (PCBU)
  to ensure, so far as reasonably practicable, the health and safety of workers
  (section 19);
• the duty of officers of a PCBU to exercise due diligence to ensure that the PCBU
  complies with its primary duty (section 27); and
• a duty on workers to, among other things, take reasonable care for their own
  health and safety and comply, so far as reasonably practicable, with any reasonable
  instruction or policy relating to health and safety in the workplace (section 28).

Based on a workplace policy, an employer may direct an employee to undergo drug and alcohol testing if such a direction is reasonable. It would be reasonable to conduct drug and alcohol testing in the workplace if your workers pose a risk to health and safety if performing their duties under the influence of drugs or alcohol.

If you are engaging in drug testing, ensure that you have formal written policies on the procedures, in particular, advising employees of the following information:

• circumstances in which testing can occur;
• purpose of testing;
• drugs for which you will be testing;
• storage and security of personal information obtained; and
• the consequences of a positive drug test result.

Percentage of the workforce to be tested

There is no legislative requirement on the number of employees to be tested. The Australian Alcohol and Drug Foundation reports that the percentage of employees tested generally ranges from 10% to 30%.

Selecting employees to be tested

Your alcohol and drug policy should cover this in detail, and could stipulate that you can conduct both random and targeted testing. It is recommended that random testing be done across the entire organisation, but target testing is appropriate in some situations.

Bear in mind that any drug-testing program should not be discriminatory in the way employees are selected for testing or the manner in which test results are used.

As you are already using an external third-party to undertake the testing, then it should also be the one to randomly select employees to undergo such testing. However, this is dependent on the wording of your drug and alcohol policy.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Alcohol and other drugs for current advice.