Workplace drug testing

30 July, 2025
Parliament of Victoria | Legislative Council

David ETTERSHANK (Western Metropolitan):

Victoria’s workplace alcohol and other drugs framework is a mess, with discrepancies in workplace testing and no agreed processes. AOD testing can rob workers of dignity and privacy and stigmatises those who are prescribed certain drugs, notably medicinal cannabis.

A couple of years ago Legalise Cannabis Victoria referred an inquiry to the Legal and Social Issues Committee to look into the legal and regulatory framework for workplace drug testing, how that framework for AOD drug testing could be improved, the potential for discrimination and how that might be addressed in Victoria’s anti-discrimination laws.

The committee recommended broad reforms to our workplace drug-testing regime. Recommendations included amending the Equal Opportunity Act 2010 to prevent discrimination against people who have a medical condition or are taking a prescribed medication and updating WorkSafe Victoria’s guidance on AOD policies to include medicinal cannabis and WorkSafe developing a compliance code for alcohol and other drugs in the workplace.

The inquiry wrapped up nearly a year ago and the government’s response was due in February, but there has been little or no action by the government to respond to the committee’s report, much less implement its recommendations. I might add those recommendations were fully supported by the government members of the committee. This is harming workers, causing uncertainty for employers and needlessly jeopardising Victorian workplaces.

So let us have a look at those recommendations. The first one seeks government support for the principle that, outside of mandated industries, drug testing should only occur when employers have a well-founded belief that an employee may be impaired at work and only then in the context of a comprehensive alcohol and other drugs policy and accompanying support framework as agreed by employers, employees and their unions.

A major deficiency in our current workplace alcohol and other drugs framework is that the majority of workplace tests screen only for the presence of drugs, rather than impairment. As noted by the Health and Community Services Union, analysis of urine, hair and saliva only indicates past drug usage. No test can detect impairment, and the Australian standards’ cut-off levels for detecting past drug use are largely set to minimise the likelihood of false positives.

But I remind members that the detection of trace elements of a drug is not equivalent to impairment and that those trace elements can stay in one’s system for weeks.

AOD testing can generate and exacerbate stigma and discrimination, and it is often based on outdated ideas about the way people who use alcohol and other drugs might behave and the kinds of people who use AOD. Insufficient precautions to protect a participant’s privacy, including access to private medical information, can result in all sorts of assumptions, including that a person might be using drugs illegally. It is hardly surprising that workers are reluctant to expose themselves to such stigma and discrimination by disclosing their use of medication.

One memorable case study I would like to share is of a software analyst who contacted us seeking advice after they disclosed their medicinal cannabis use at work and were promptly suspended and then sacked. They had lived overseas, where they had sustained severe injuries and been prescribed heavy-duty opioids and benzodiazepines to treat symptoms including pain, insomnia and anxiety. These highly addictive drugs come with extremely impairing side effects.

After moving to Australia they went through an excruciating withdrawal process and were then prescribed medicinal cannabis. Medicinal cannabis enabled them to sleep and perform their job properly with none of the impairing side effects they had experienced on other drugs. They worked behind a desk. They posed no risk to workplace safety and they were unimpaired; yet they were suspended and ultimately sacked for taking their prescription medication. They did not want to go back to opioids and benzos, understandably, but felt they had no option if they were to find work in Victoria. Frankly, that is appalling.

So the recommendation that testing only 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 is very pertinent.

Another concern aired during the inquiry was that it is not clear what AOD policies are actually trying to achieve. It is a reasonable question. There is no legal reason to test workers for alcohol and other drugs outside of a few mandated industries. With no enforceable AOD framework, it is left to employers to decide whether to test their employees and how. A comprehensive AOD framework not only affords protection to employees but certainly also to employers.

What would such a framework look like? Ideally, it would be a standardised and progressive health-led impairment policy developed in collaboration with worker representatives and industry leaders, one that promotes early intervention and best practice responses, upholds worker dignity and privacy and provides peer-reviewed training and education on alcohol and other drugs. It would also include mandatory codes of practice around acquiring and handling samples for AOD testing.

Internationally there is a growing body of case law that regards zero-tolerance policies as unreasonable and advocates for reasonable adjustments to be made for workers on prescribed medications. A contemporary AOD policy must include obligations for employers to make those reasonable adjustments where a worker is unimpaired.

And I want to be absolutely clear: no-one should be impaired at work, whether that be through the use of alcohol, other drugs, fatigue or stress. But workplace AOD policies need to move away from the fear, shame and stigma that exist around alcohol and other drug use. Policies need to foster openness, empower workers to assess their own limits and if need be seek help for problem use.

Unfortunately, as the inquiry heard repeatedly, the principal document for developing such policies, the WorkSafe guide for developing a workplace alcohol and other drugs policy, is profoundly flawed and woefully out of date. It also contains highly problematic language around drug use, which perpetuates stigma and discrimination. It has not been updated since 2014, four years before medicinal cannabis was legalised in Victoria. As such, it assumes that all cannabis detected in the workplace is inherently illicit.

The inquiry found that 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. Happily, there are recommendations about updating WorkSafe’s alcohol and other drugs policies and, critically, a recommendation to develop a compliance code for workplaces, giving practical guidance on how an employer can comply with their AOD workplace obligations.

WorkSafe’s guide should include information for employers and workers around impairment and safety at work, including the rights to privacy and dignity; the provision of health-led AOD policies and procedures; and reasonable adjustments to the workplace training and advice on alcohol, drugs and, where needed, gambling support. There should also be a public education campaign and AOD-specific training for workplace health and safety representatives.

Recommendation 2 calls for an amendment to the Occupational Health and Safety Act 2004 to include key principles around alcohol and other drug testing. While Legalise Cannabis Victoria is, unsurprisingly, focused on the discrimination faced by prescribed medicinal cannabis patients, we know this occurs within the wider context of a discriminatory and stigmatising approach to alcohol and other drugs in the workplace.

The Victorian Equal Opportunity and Human Rights Commission proposed an amendment to the Equal Opportunity Act 2010 to protect workers taking prescription medication or receiving medical treatment for a disability by amending the definition of ‘discrimination’ to clarify that those actions are a characteristic that a person with that disability generally has. Recommendation 3, then, calls for the Victorian government to amend the Equal Opportunity Act 2010 accordingly.

The right to health is a recognised human right under the World Health Organization and under the Australian Charter of Healthcare Rights. We have a right to access the services and treatments that meet our needs.

The lack of a standardised, progressive and health-led AOD framework compromises this right, robs workers of dignity and autonomy and undermines their right to privacy, and this is a fact that a Victorian government recognised a long while ago. In 2005 the then Labor government commissioned the Victorian Law Reform Commission to inquire into reforms needed to ensure workers’ privacy was protected and consider the physical and psychological testing of workers, including drug and alcohol testing, medical testing and honesty testing.

The report had a lot to say about AOD policies and testing. It recommended the creation of workplace privacy legislation and mandatory codes of practice around the taking of bodily samples from workers or prospective workers for AOD testing, including obtaining written consent from a worker, the specific purpose of testing, what kinds of tests should be used and how tests should be conducted. These are exactly the same sorts of things the committee recommended WorkSafe include in its guidance and compliance code.

It has been 20 years since that report was tabled. Had the then government implemented those recommendations we would be much further along the road to the comprehensive, contemporary and progressive occupational health and safety laws that we need.

The government’s response to the inquiry into workplace drug testing is now well overdue, but hopefully we will not be waiting another couple of decades for a government to pull its finger out. AOD testing is not only limiting, it cannot indicate time of use, quantities, doses or patterns of usage. It is ineffective. There is also little evidence that testing does anything to reduce the risk of harm in the workplace.

We recognise that Labor as a party has a strong commitment to workers, and we have been quite overwhelmed by the support these recommendations have received among Victorian trade unions and union members. We were also heartened by the remarks made by the federal health minister on Sunrise yesterday:

I’m a very big believer that people should be protected in undergoing their medical treatment, particularly where that treatment is prescribed by their medical practitioner. … the first principle must be people should be supported through their medical treatment. There will obviously be questions about using heavy equipment and the like, but I think it is time to have that debate about updating our laws.

It is lovely to see Minister Butler recognising this and also that this matter is being debated in the house today.

The government needs to implement the recommendations of the inquiry into workplace drug testing in Victoria now. We simply cannot afford to wait. Prevention, risk education and training are the things that keep workplaces safe, not the fear, shame and stigma that currently exist around alcohol and other drug use in the workplace. I urge members to support the motion.

[Debate continued]

David ETTERSHANK (Western Metropolitan):

May I start out by thanking all of the members who have contributed to the debate this afternoon for their very thoughtful and frank contributions. I would also like to thank all of the many organisations and individuals who participated in the inquiry process and who appeared before the committee. I think it was, for all of us, a big learning curve. It was a great experience, and I think the quality of the recommendations that have come from that reflect that richness of thought.

Dr Heath and Mr Batchelor both talked about the difficulties associated with impairment testing, and I think clearly that is an issue. It is for that reason that one of the findings of the inquiry is that workplace drug testing should only occur where there is a well-founded concern that a worker is impaired. In other words, it is not a simple random act, it is not a coercive act; it is one that takes into account concepts of due process and natural justice and is premised upon the observation of impairment. That is a fairly simple test to make, and it is only reasonable that workers not live in fear on a daily basis that they will be discriminated against, stigmatised or victimised simply for taking a prescription medication.

Dr Mansfield talked about the fact that all too often current testing is actually counterproductive. That is, again, very often because what we are seeing are coercive or prejudicial alcohol and other drug policies that assume a level of guilt, ignorance or abuse by workers. I think we really need to push back against that, and I know the government is committed to pushing back against that sort of stereotyping of people who consume alcohol and other drugs. Also, in addressing these questions we need to have a health-based approach that reflects best practice and that reflects a harm minimisation approach to dealing with issues such as this.

Mr Galea talked about the closed-track driving trial, and I think a number of us were a bit disappointed when we went out to the closed-track driving trial to find that what was promised in the early scoping documents for that trial, including extensive testing of different impairment methodologies, in fact was no longer the case, because this does strike to a motion that was moved by Mr McCracken to actually learn more about this question, including the incorporation of the findings from the closed-track driving trial.

Ms Payne talked about the Equal Opportunity Act 2010 amendment, and I think it is a great example of a change that the government can do really quickly and with minimal further delay. What we saw in the inquiry was that the Victorian Equal Opportunity and Human Rights Commission came before the committee advocating for this change, and not only did they advocate most persuasively about the need for change but they even provided drafting for amendments to the act.

I guess this is a good example of where we say that the pursuit of perfection should not be the enemy of the good. There is more than enough on the plate here for the government to make meaningful changes both to the Equal Opportunity Act and also to the Occupational Health and Safety Act 2004.

We implore the government to pull its finger out and make these changes. They are needed to protect workers. It has broad support within the labour movement, and there was a high level of consensus within the committee. With that I thank the members and commend the motion to the house.

Chamber divided on the question.

Motion passed 20 votes to 13.

[Ends]