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Employment Today, HR Solutions - Thomson Reuters

Employment Today, HR Solutions - Thomson Reuters



Employment Today Magazine

Testing times

Kirsty McDonald and Graeme Tanner look at the legal and practical elements of drug and alcohol testing, both pre employment and in the workplace.

Workplace drug and alcohol testing has been a hot topic of late both in a political and employment context. Notably, recent comments from the Prime Minister and amendments to health and safety legislation have led to greater awareness of drug and alcohol testing in the workplace.

Increasingly, employers need to give consideration to balancing their obligations to provide and maintain a safe work environment with the inherently intrusive nature of drug and alcohol testing and the implications that it has on an individual’s right to privacy.

Against this backdrop, we look at the legal and practical elements of drug and alcohol testing, both in relation to pre-employment drug screening and the various options available to employers for workplace drug and alcohol testing once an employment relationship is on foot.

DRUG AND ALCOHOL POLICIES

The Health and Safety at Work Act 2015 confirms that persons conducting a business or undertaking (which includes employers) have a positive duty to eliminate or minimise risks so far as is reasonably practicable. In this respect, the courts have universally recognised that impairment or risk of impairment due to drugs and alcohol can represent a workplace risk/hazard.

Drug and alcohol policies are an important tool to eliminate or minimise such risk. Typically a policy would cover the different types of testing:

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    Pre-employment testing;
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    Reasonable cause testing;
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    Post incident testing;
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    Random testing (limited to safety sensitive positions).

It would also usually address the means of testing that will be adopted (be it saliva or urine testing); the types of drugs being tested; the consequences of refusing to undergo a test or returning a non-negative test; and any support that might be available.

Any such testing needs to be consistent with the clauses of any prevailing employment agreement and/or drug and alcohol policy. While employers are able to introduce or amend drug and alcohol policies from time to time, they must ensure that any such policy is consistent with the contractual terms of the relevant employment agreements (as those agreements will prevail over any policy) and that employees are consulted with.

Ultimately, any such policy needs to be fair, reasonable and lawful and, of course, once such policy is in place, it is important that employers comply with it when undertaking such testing.

Pre-employment screening. Pre-employment drug screening is a practice that is widely used in a number of industries.

The prevalence of pre-employment screening was recently highlighted by the Prime Minister who suggested that many employers are struggling to find New Zealand candidates able to pass a pre-employment drug screen. While the accuracy of such claims has been hotly debated, it’s clear that, when used appropriately, pre-employment drug screening can be a useful tool for employers, particularly in safety sensitive industries.

From a legal standpoint, while employers certainly need to be alive to prospective employees’ rights to privacy and the inherently invasive nature of any form of drug testing, pre-employment screening is reasonably straightforward. Typically an offer of employment is expressly conditional on the return of a negative test and it is made clear that the employment relationship will not commence until after that time. If a prospective employee then fails to return a negative sample, the conditions of the offer of employment will not have been met and the offer can simply be withdrawn at that time.

Reasonable cause testing. If an employer is going to carry out reasonable cause testing, consideration should be given to what reasonable cause indicators might look like. Generally these will be expressed in a non-exhaustive list of reasonable cause indicators such as excessive lateness, odour of alcohol, violent or erratic behaviour, bloodshot eyes, or impaired motor skill, for example.

Post incident testing. Post incident testing is typically used following an accident or near miss in the workplace, particularly where there is reason to suspect that the incident may have been the result of impairment due to drugs and/or alcohol.

Random testing. Random testing in the workplace is a more complicated issue. The circumstances in which random testing can be lawfully carried out are strictly limited. Owing to the lack of reasonable suspicion and the intrusive nature of drug and alcohol testing, random testing can only be justified for employees in positions that are truly safety sensitive in nature.

TROUBLESHOOTING/PITFALLS

Drug and alcohol testing is a minefield and one that can and does lead to disputes. Bearing in mind the circumstances in which drug and alcohol testing can be conducted, there are a number of common mistakes that employers make when approaching such testing. The following are examples of the typical pitfalls:

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    Failing to comply with the drug and alcohol policy. While drug and alcohol testing in the workplace is permissible, employers need to comply with their own policies. Failure to do so has led to a number of cases proceeding to litigation and findings that an employee was unjustifiably dismissed or disadvantaged owing to an employer’s failure to strictly comply with their own requirements.
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    Failing to consult around the introduction of a drug and alcohol policy that is subsequently relied on to later justify testing.
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    Failing to consider alternatives to dismissal in the event that employees do return non-negative or positive tests. It is important to remember that, like any other disciplinary issue, employers are obliged to consider alternatives to dismissal before a decision to terminate an employment relationship for cause can be justified.
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    Having a policy which provides for randomly testing (of safety sensitive roles) and failing to carry out random testing.
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    Carrying out reasonable cause testing without observing reasonable cause factors in an employee’s appearance/behaviour, but attempting to justify such testing by other means.
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    Being aware that alcoholism and drug dependencies are potentially disabilities under the Human Rights Act 1993. As it is unlawful under s22 of the HRA to terminate an employee’s employment by reason of an employee’s disability, there could be a possible discrimination argument if an employer moves to terminate an employee’s employment without having considered whether rehabilitation is appropriate.

Finally, it is worth bearing in mind that a positive drug test result doesn’t on its own amount to serious misconduct. Whether such test result constitutes serious misconduct, and whether or not rehabilitation is appropriate, will turn on all the relevant circumstances of each individual case. There is no one size fits all.

Drug and alcohol testing in the workplace looks like it’s here to stay, particularly in a climate of increased awareness of health and safety obligations on both employers and employees.

When used appropriately, both pre-employment screening and workplace testing can be powerful tools in eliminating or minimising workplace hazards; however, employers need to be careful that any screening needs to be fair and carried out in a way that is entirely consistent with its employment agreements and/or drug and alcohol policies.

KIRSTY MCDONALD is a partner at Duncan Cotterill specialising in employment law and health and safety and GRAEME TANNER is a senior solicitor.

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