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Kate Ashcroft spoke at the Conferenz 31st Annual Industrial and Employment Relations Conference recently, on creating and implementing an effective drug and alcohol policy.  This article summarises key points from her presentation.

Drug and alcohol testing is viewed as intruding on an individual’s freedom, in respect of their conduct outside of work, and the law relating to testing is still developing.  Numerous laws, including but not limited to, the Health and Safety in the Workplace 2015 Act (HSWA), the Privacy Act 1993, the Bill of Rights Act 1990, and the Employment Relations Act 2000, must be considered and applied in drafting and implementing a drug and alcohol testing policy.

Key considerations in any policy are as follows:

What will be the policy’s purpose, and who will it apply to?  Eg employees only, or employees and contractors?
What type of testing will be conducted?  Options include pre-employment, reasonable cause, post-incident and/or random testing.  Random testing may only be conducted for “safety sensitive” roles, and you will first need to determine whether your workplace is safety sensitive.
How will you decide when to test?  If doing reasonable cause testing, you will need to specify reasonable cause indicators, and if doing post incident testing, you will need to specify who this will cover in relation to an incident.
Who will carry out the testing?  A reputable agency should be used.
What will the testing procedure involve?
How will you address employee privacy?
What will you do if the employee does not consent to testing?
What will you test for?
What will be the “cut off levels” for positive tests?
Will you provide rehabilitation opportunities for positive test results?
Implementing an effective drug and alcohol policy requires consultation with existing staff, and in summary, involves providing them with a draft policy, advising them of the reasons for implementing the policy and inviting them to provide feedback which is considered before the policy “goes live”.  Consultation also assists employee engagement with the policy.

Should an employee return a positive test, all employment law obligations in respect of fair process, good faith, and justification apply, and employers must ensure strict adherence to their own policy.  A positive test result does not automatically mean a decision to terminate will be justified.

If you need advice on creating and/or implementing drug and alcohol policies and reducing the hazard caused by drugs and alcohol in your workplace, please contact us.

Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
April 2017