Employers want federal drug discrimination Bill tightened

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Employers want federal drug discrimination Bill tightened

The proposed federal drug discrimination amendment Bill requires more certainty to prevent employers unwittingly breaching the law, says the Australian Chamber of Commerce and Industry (ACCI).

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The proposed federal drug discrimination amendment Bill requires more certainty to prevent employers unwittingly breaching the law, says the Australian Chamber of Commerce and Industry (ACCI).
 
 Although ACCI supports the overall Bill and its aims, it is critical of reforms concerning the definition of addiction to prohibited drugs and the operation of its exclusions.
 
The Federal Governments Disability Discrimination Amendment Bill 2003 was introduced into parliament at the end of last year.  The Bill seeks to remove the ban on disability discrimination based on a person’s addiction to a prohibited drug. If the Bill is successful it will allow not only employers but also others to discriminate against and dismiss people who are addicted to prohibited drugs.

The Bill also seeks to amend s170CKof the Federal Workplace Relations Actto ensure that employees can’t rely on their addiction to a prohibited drug as grounds to claim unlawful termination.

It is currently in a Senate Legal and Constitutional  Inquiry. It is opposed by the Greens and the Democrats.  See previous story.

Definitions

In its submission to the Senate Inquiry this week, ACCI claimed the provisions of the Bill don’t adequately define addiction. This made it difficult for employers to decide ‘when someone is and is not addicted and distinguishing addiction from episodic use or impairment’.

Medical testing, as a way around the problem, was considered problematic because it was an expensive option for all businesses, in particular smaller employers.

According to ACCI, the only way to address the problem was to allow employers to determine addiction ‘as an ordinary person in the street would, and to have confidence that this is a legitimate approach under the Disability Discrimination Act 1992.

‘In particular, employers need to be able to act to address unacceptable manifestations of drug use/ impairment without subsequent disputation as to whether an individual was or was not technically addicted to the drug they were using at that time.’

Treatment exclusions

ACCI also considered the Bills treatment exclusionsas problematic.

Under the current provisions of the Bill, employees who are lawfully taking prohibited drugs, such as a cancer sufferer on morphine; and employees addicted to prohibited drugs but are undergoing a drug treatment program are excluded from the discrimination provisions.

ACCI said it understood the problems facing people lawfully taking prohibited drugs, but there were still workplace commercial, operational and safety imperatives that must be considered.

Employers want to know that when they are managing these business imperatives in relation to employees lawfully taking prohibited drugs they are adhering to their obligations under the Disability Discrimination Act.

If they change an employee’s responsibilities, restructure their work and so on they want to be confident they don’t end up on the receiving end of a discrimination claim.

ACCI is worried that there may be no scope in the Bill for an assessment of reasonableness concerning the employer’s actions.

The exclusion of employees in drug treatment programs also posed a difficulty.

ACCI claimed the Bill was unclear on what constituted a treatment program. This made employers unsure of their rights. They would be unclear as to whether or not an addicted employee was in a legitimate treatment program, and whether or not their actions in relation to the employee would constitute discrimination.

ACCI did not want the treatment exclusion to become a barrier to legitimate employer sanctions. 

Privacy implications

Interestingly, privacy laws may prevent an employer from knowing if an employee is addicted to prohibited drugs and on a treatment program, and work against the proposed provisions of the Bill.

According to ACCI, situations may arise where an employer may have to take action against an employee based on behaviour which is a manifestation of drug use. But the employer may not know that the employee is addicted to drugs or on  a drug treatment program and end up in breach of the Act.

ACCI wants the Parliament to consider imposing a duty on drug addicted employees to disclose their drug use and treatment.

However, this disclosure would only occur at the point at which the unwitting employer decided to take action and was about to unknowingly put themselves in breach of the proposed laws.

ACCI stressed this disclosure was not a general duty to disclose.

In addition to the disclosure, ACCI would like to see a reasonableness provision concerning what an employer could be expected know considering the circumstances of the situation.

ACCI’s full appraisal and submission regarding the proposed discrimination law changes is not available online yet.

For a copy of the Federal Government's Disability Discrimination Amendment Bill 2003 go to the Parliament of Australia website

 

 

 

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