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The Copeland Ashcroft Law Team recently presented a seminar roadshow on the crossover between employment law and health and safety obligations, and one of the areas of focus in this presentation was the management of drug and alcohol testing in the workplace.  This article summarises some of the “need to know” basic tips from the roadshow.

Testing for drugs and alcohol at work is becoming increasingly common, especially as employers become more alert to their health and safety obligations under the new Health and Safety at Work Act 2015 (“Act”). The effect of drugs and alcohol on an individual is well recognised as a potential hazard in the workplace, and in fact the Act specifically refers to drugs and alcohol under the definition of ‘hazard’.  Implementing a drug and alcohol policy may well be a reasonably practicable step an employer can take to ensure the workplace is healthy and safe, particularly if the workplace is considered safety sensitive.

However, drug and alcohol testing at work is still somewhat controversial, and the legal principles around it are not well settled in New Zealand yet.  if not carried out fairly and reasonably in line with a clear policy, drug and alcohol testing can carry significant legal risk.   It is critical that an employer has a robust testing policy that is tailored to their workplace and that, once implemented, is closely adhered to.  Employers should consult with staff and unions before implementing a policy (consultation does not require agreement however), and a policy must specify what kinds of testing will be carried out.

Policy requirements:

Policies often cover testing in the following circumstances:

Pre-employment testing: Before an individual is offered a position with the employer.  An offer of employment may be subject to the individual undertaking a drug and/or alcohol test and the employer being satisfied with the results;
Post-incident testing: After an accident, incident or near miss that the employee was involved in. Not every accident, incident or near miss will justify a test though, and the policy should state the specific situations when testing may be carried out.  For example, when there has been an accident, incident or near miss that results in injury, damage to property, or a real risk to health and safety;
Reasonable cause testing: Where the employer or another person suspects, on reasonable grounds, that employee is under the influence of drugs or alcohol at work.  The policy should contain a list of ‘reasonable cause indicators’; and
Random testing: May only be used where for employees who undertake “safety sensitive” work.
A good policy will also set out the possible consequences if an employee returns a positive test (including what disciplinary action the employee might be subject to, and whether (and in what circumstances) rehabilitation will be offered.

While an employer cannot test an employee without their consent, the employer’s policy should describe what will happen if an employee refuses to take a test (or undermines or interferes with an employer’s attempts to test).

Because drug and alcohol testing can be risky, we highly recommend seeking advice from our team in developing and implementing a policy, and in taking action in reliance on the policy.

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