Tensions in workplace drug and alcohol testing

New Zealand’s drinking culture, and the effect of alcohol on our communities is rightly a topical issue in the media. Alcohol is a significant contributor to our prison, child abuse and family violence statistics. Nigel Latta’s recent TVNZ documentary “The Trouble with Booze” has also highlighted the influence of the alcohol industry and apparent political apathy to address problems that are undoubtedly linked to alcohol.

It should come as no surprise that alcohol related issues surface in the workplace. The proposed Health and Safety Reform Bill and its increased focus on employer responsibility, has also renewed attention to the issue of workplace drug and alcohol testing. With these factors in mind, it is timely to consider the current law.

The courts have found that drug and alcohol testing is likely to be lawful in most cases if carried out pre-employment, post-accident or for “reasonable cause”, such as if the employee appears intoxicated or under the influence of drugs. However, random testing is only likely to be lawful in safety-sensitive industries and in roles that are safety sensitive by their nature. There is no precise judicial definition of what amounts to a safety sensitive industry or role. However the courts have indicated that places such as wharves, and industries such as forestry, are by their nature safety-sensitive.

Before introducing any form of testing, employers should ensure a comprehensive policy is drafted. It is wise that this be introduced only after consultation with employees. Policies should require the use of trained experts and that the employer will follow a documented and fair testing method.

The Employment Relations Authority and Employment Court have held that failing a drug or alcohol test does not necessarily amount to serious misconduct, nor justification for dismissal. However, an employee’s failure to remain drug-free where this is a requirement of the employer’s policy, may amount to serious misconduct. As with any investigation, rules of natural justice and good faith, including following a fair procedure where the employee’s explanation and all evidence is genuinely considered, must be applied. Employers should also consider alternatives to dismissal, such as a rehabilitation plan.

Employers considering testing employees for the use of drugs or alcohol should do so with caution. A policy for drug and alcohol testing should be tailored to the individual workplace. Any policy needs to be updated regularly, to keep in line with developments in the science of testing, particularly where less intrusive testing methods become available.

There is an inherent tension with drug and alcohol testing in the workplace, between balancing the employer’s rights and obligations to provide and maintain a safe workplace, against employees’ rights to privacy. Employers should consider the issue within their workplace. However, this is a complex and constantly developing area of law and employers are best not introduce testing without sound advice.

This article was first published in the Waikato Times, 20 August 2014