Drug and alcohol testing in the workplace commonly creates a tension between the employer and the employee. On one hand, the employer has a duty to take all practicable steps to provide a safe workplace and to identify and manage significant hazards in the workplace. On the other hand, the employee has a right to privacy and freedom from intrusion.
Further complicating the matter, there is no enabling legislation in New Zealand for introducing drug testing to the workplace. Leaving aside specific industries such as aviation and maritime, this area is subject to a combination of case law and various statutes including the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993, the Privacy Act 1993, the Employment Relations Act 2000 and the Crimes Act 1961.
Can I introduce a drug and alcohol policy to my workplace?
In Maritime Union of New Zealand & Ors v TLNZ Ltd & Anor the Court said that employers may introduce a drug and alcohol policy to the workplace without obtaining the agreement or consent of the employees or union, provided it is lawful and reasonable and that the relevant employment agreements do not require the employee’s consent. However employers should consult with employees and unions before introducing a drug and alcohol policy into the workplace.
Formulating a sound drug and alcohol testing policy
If employers foresee the need to test for drugs and alcohol in the workplace, it is best practice to ensure that a robust drug and alcohol policy is in place. Developing a sound drug and alcohol policy helps employees to understand the employer’s expectations and the likely consequences for breach. It also helps the employer follow the correct process and avoid unnecessary legal action or adverse publicity.
When formulating a policy, there are many factors to consider. Consideration should be given to the purpose and coverage of the policy, detail about what will be tested, how and by who, consequences for refusing consent, what will happen to the test results, what will happen should an employee test positive and whether education/rehabilitation/counselling will be offered.
There is wide ranging case law on many of the issues that arise from workplace drug testing. For example, in some instances the consequence of returning a positive drug test has been held to amount to serious misconduct and in other cases it has not. What remains clear is that employers must always be mindful of their duty to act in good faith in considering the consequence for the employee.
It is imperative that a drug and alcohol policy is consistent with existing employment agreements. Where an employment agreement contains clauses that conflict with the policy, the clauses in the agreement take precedence.
Conclusion
It remains to be seen whether Parliament will pass legislation or Worksafe will implement guidelines to assist employers to navigate this area. In the meantime, it is widely reported that workplace drug testing is on the rise. It is anticipated that this increase will continue with the introduction of the new health and safety legislation. All employers should pause to consider whether any drug and alcohol testing policy is consistent with their good faith obligations and with any employment agreement.
Carolyn Gardner is a Senior Solicitor in the Employment team at Norris Ward McKinnon. You can contact Carolyn at [email protected]
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