Drug, alcohol and gambling addictions among employees can be an expensive problem for employers and industry, with issues ranging from lost productivity, absenteeism, injuries, fatalities, theft and low employee morale, to an increase in health care, legal liabilities and workers' compensation costs. When you consider that Australians are among the most prolific drinkers, gamblers and drug takers in the world, the odds of addiction finding its way into your workplace are sizable.
Addiction has been recognised by medical professionals as a pathological condition or impulse-control disorder.
Despite this, it may come as a surprise that there is now legal authority which confirms addiction (drug, alcohol and quite possibly gambling addiction) can be a ‘disability’ under discrimination law, meaning that employers need to think carefully about how they respond to employees battling with addiction.
Increasingly, employers are taking proactive steps to address addictions by establishing or promoting programs focused on improving health. By encouraging and supporting treatment, employers can dramatically assist in reducing the negative impact of addiction in the workplace and improving workplace engagement, while reducing their costs.
ADDICTION AS A DISABILITY
Under Australian laws, an employee cannot be discriminated against in the workplace because of a protected attribute. Although discrimination legislation varies from state to state, ‘disability’ (or ‘impairment’ in Queensland and the Northern Territory) is a universally protected attribute.
In Marsden v HREOC  FCA 1619, the Federal Court confirmed that dependence on opioids (such as methadone or heroin) is a disability under the Disability Discrimination Act 1992 (Cth) (DD Act). Consequently, it is unlawful for an employer to treat a person less favourably than they would treat somebody else because they are addicted to opioids (or have been), or because of a symptom or manifestation of the addiction (such as anxiety, irritability, dilated pupils, abandonment of important activities).
Following Marsden, prohibited drug addiction was also recognised as a disability under the Anti-Discrimination Act 1978 (NSW) (NSW Act) (Hubbard v Roads and Traffic Authority of NSW  NSWADT 99; Carr v Botany Bay Council  NSWADT 209).
The position is less clear in Victoria, however based on the Federal and NSW position, there appears to be support for the argument that prohibited drug addiction would also qualify as a disability under the Equal Opportunity Act 2010 (VIC).
The success of such an argument will ultimately hinge on expert evidence about whether the pathological condition constitutes a mental disorder or disability within the meaning of the legislation.
GAMBLING ADDICTION AS A DISABILITY – RECENT DEVELOPMENTS
The recent decision of Hinder v The Salvation Army (NSW) Property Trust (No 3)  NSWCATAD 16, highlights the potential for employees to argue that gambling addiction is ‘disability’ under discrimination law.
Ms Hinder, a store supervisor employed by The Salvation Army, was suspended with pay in 2011 following complaints from customers about her failure to follow directions to clean the shop, and her smoking in non-smoking areas. Ms Hinder resigned before the investigation was complete.
Three years later, Ms Hinder made a claim under the NSW Act based on disability discrimination. She alleged that she was suspended because her supervisor fabricated evidence that she had been stealing from the store and that he did this because she was a problem gambler. The Anti-Discrimination Board declined to hear her case so Ms Hinder sought leave to continue with the complaint.
Central to Ms Hinder's was the argument that a tendency to steal money is a characteristic that is generally imputed to people who have a gambling addiction. The Tribunal said that for Ms Hinder to succeed she would have to prove that her gambling problem was a disability and that she was suspended because of her gambling addiction or a characteristic associated with her disability (ie, stealing money). The Tribunal found that both points were arguable and granted leave for Ms Hinder to proceed with her complaint.
The issue of whether a gambling addiction could be a disability or impairment was previously considered by the Victorian Civil and Administrative Tribunal (VCAT) in McDougall v Kimberly-Clark Australia Pty Ltd  VCAT 2211. In that case, Ms McDougall claimed that her employer discriminated against her by not paying her salary continuance while she was suffering from a disability, being a gambling addiction. Ultimately however, VCAT did not make a finding as to whether gambling addiction is an impairment or disability as there was insufficient evidence about the duration and timing of Ms McDougall’s gambling addiction.
As a result, the question of whether gambling addiction is a disability under discrimination law remains open to debate, and is likely to hinge on expert evidence.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Even if judicial authority emerges to clarify the position in Victoria, Victorian employers are still required to comply with their obligations under the DDA, meaning that employers can’t discriminate against employees on the basis of an actual or imputed addiction to opioids (and quite possibly other addictions).
Employers should be mindful of their obligations under anti-discrimination laws when determining how to support or manage an employee who discloses an addiction or whose unsatisfactory performance is caused by, or connected with, their addiction.
HOW WE CAN HELP
Moores can help employers to effectively manage addiction in the workplace by:
- developing (or reviewing) a drug and alcohol policy
- providing advice on:
- what you can and cannot lawfully do under relevant Federal and State discrimination laws (including best practice guidance on leave and support for employees receiving treatment for addiction)
- whether drug and alcohol testing policy is reasonable and appropriate for your workforce
- obtaining medical advice to determine whether an employee’s addiction is caused by an underlying disorder, and any impact on the employee’s ability to perform the inherent requirements of their role in light of their addiction
- any reasonable adjustments required to enable the employee to perform the inherent requirements of the role
- appropriately and sensitively managing employees who take excessive leave, have high absenteeism, poor performance or productivity, or demonstrate problem behaviours due to an addiction
3. providing tailored training for staff and management in relation to relevant policies
If you would like to speak with us further, please do not hesitate to contact our Principals, Skye Rose or Catherine Brooks, on (03) 9843 2100 or by email to firstname.lastname@example.org or email@example.com.
 Note however that it is now lawful under the NSW Act for an employer to discriminate against a person on the basis of an addiction to a prohibited drug if the person is actually addicted to the drug at the time of the discrimination. This exception was introduced following the decision in Marsden v HREOC  FCA 1619.