According to the 2012 United Nations World Drug Report, New Zealand has comparably high levels of illicit drug taking, particularly cannabis use. Not surprisingly, this is a concern for employers wanting to maintain standards and safety in the workplace. This issue creates a conflict between an employee’s right to privacy, and the rights and obligations of employers to provide a safe, healthy and efficient working environment.
DRUG AND ALCOHOL POLICY
Having an effective drug and alcohol policy is important for employers. This policy, generally found in the employment contract or its accompanying guidelines, specifies the rights and obligations of employers and employees regarding the misuse of alcohol and the use of illicit drugs. The policy should specify the consequences of attending work under the influence of alcohol or drugs and any relevant testing regime. As with all employment issues, there is a general duty of good faith imposed on both parties. An employer may require pre-employment testing as this will take place before the employment relationship and therefore before the duty of good faith obligations begin.
Random or “suspicionless” testing is permitted only in safety sensitive areas of a workplace. The Employment Court noted in a case involving Air New Zealand that pilots, aircraft engineers and flight planners, as employees in safety sensitive areas, might be the subject of random testing whilst HR advisers, in-house lawyers and payroll staff would not. Clearly, there is grey area when determining whether an employee works in a safety sensitive area. In any event, provision for random testing should be recorded in the drug and alcohol policy and provided to the employee.
REASONABLE CAUSE TESTING
Where a workplace environment is not safety sensitive, a drug and alcohol policy may specify that an employee will be subject to testing if there are reasonable grounds to believe that an employee is impaired at work. Reasonable grounds may include; immediately after an accident or near miss, or where drug use is witnessed. The reasonable grounds must be specifically related to the behaviour of the employee to be tested, and a general suspicion that employees are taking drugs is insufficient. An employee being tested must be presented with any evidence against him or her – hearsay evidence should be treated cautiously as generally this may not be sufficient.
Importantly for employers, a positive drug result will not be taken into account in determining damages for unjustified dismissal if there were no reasonable grounds for the test. In other words, the mere fact that an employee turns out to be a drug user will not remedy any procedural impropriety by the employer.
DRUG TESTING PROCEDURE
The most common procedure for drug testing is to have a preliminary “screening test” that results in an instant negative/positive result. An employee who returns a positive result should undergo a laboratory confirmation test. The confirmation test is important because the screening test is designed to be highly sensitive and may return wrongly positive results – poppy seeds and some forms of cold and flu medication may increase the chances of incorrect screening test results.
Provided that the delicate relationship between employee privacy and employer standards and safety is balanced, drug and alcohol policies benefit both parties in the workplace.