According to Benjamin Franklin, "Beer is proof that God loves us and wants us to be happy." However, it appears many New Zealand employers are far from happy about the way their staff are using alcohol and drugs.
The New Zealand Drug Detection Agency (NZDDA) recently announced that in 2012, it had been called on by employers to conduct over 31% more drug and alcohol tests than in 2011.
In turn, we are fielding more and more inquiries from employers wishing to implement drug and alcohol testing procedures.
So what can an employer do if it wants to test for drug and alcohol use?
In 2004, the Employment Court ruled in a test case involving Air New Zealand that certain types of drug and alcohol testing could be introduced by an employer, providing it did not conflict with any express provisions in any employment agreement, and provided there was appropriate consultation with affected employees.
Subsequently, 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.
Random testing on the other hand is only likely to be lawful in safety-sensitive industries and in roles that are safety sensitive by their nature. There has been no precise judicial definition of what a safety-sensitive industry or role is although the Courts have indicated that work places such as airports and wharves are, by their nature, safety-sensitive.
If an employer does wish to introduce any form of testing, its policy will need to be comprehensive. As such, using trained experts and following a carefully documented and fair process is essential.
The most common form of drug testing is urine testing. However, New Zealand employers should be aware that it appears that saliva testing may now be a more accurate indicator of cannabis impairment than urine testing, following an Australian case (Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia). Further, this type of testing is also considered to be less invasive.
There are dangers in relying on the results of a urine test for the presence of cannabis as conclusive proof of impairment. This is because the test for the presence of cannabis measures a non-psychoactive substance that is stored in the body’s fatty tissues for us to a month after cannabis use. The chemical that is actually detected has no effect on the brain and therefore the test cannot be used, in itself, as conclusive proof of impairment.
What happens if an employee fails an alcohol or drug test? The Courts have indicated that failing a drug or alcohol test is not necessarily justification for dismissal. The employer must still follow a fair procedure and weigh up all the evidence, including the employee’s explanation.
It is also important to be aware that a good drug and alcohol policy will usually include putting the employee on a rehabilitation plan as an alternative to dismissal.
Drug and alcohol testing can be lawful, but it is a matter of balancing the employer’s legitimate interests in keeping the workplace safe against the employee’s rights to privacy outside of work.
It is best to get specialist advice if an employer wishes to introduce drug and alcohol testing or it has an employee who it suspects is under the influence of drugs. This area of law is complex!