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The law in relation to drug and alcohol testing in workplaces continues to develop slowly in New Zealand, but a strong step forward is signalled for maritime and aviation operators soon.  In line with the Ministry of Transport, Civil Aviation Authority and Maritime New Zealand’s “Clear Heads” initiative, new drug and alcohol testing requirements in the commercial maritime sector may be introduced later this year.

By the “Clear Heads” initiative, the government is set to implement three changes:

To require all commercial aviation and maritime operators to have a drug and alcohol management plan, including random testing for all safety sensitive workers;
Maritime New Zealand and the Civil Aviation Authority to have the power to undertake non-notified alcohol and drug testing as part of their oversight and monitoring role, against the standards set in the operator’s drug and alcohol management plan.
The Ministry of Transport will explore the viability of enabling the Transport Accident Investigation Commission (TAIC) to require alcohol and drug testing from survivors of an aviation, maritime or rail accident in the commercial and recreational sectors.
Proposed changes to the Maritime Transport Act 1994 (Act)
The Maritime Transport Amendment Bill (Bill) proposes changes to the Act to require that every commercial maritime operator (operator) manages risks associated with drug and alcohol use, to align with the Health and Safety at Work Act 2015, and to give effect to the Clear Heads initiative.

An “operator” is defined as a person who operates a ship other than a pleasure craft; who holds a maritime document for operating that ship; who has established a prescribed safety system; and whose ship carries out one or more safety sensitive activities.

In summary, if the proposed changes set out in the Bill are adopted, operators will be required to have a drug and alcohol management plan (management plan) in place specifying testable drugs, permissible levels and testing procedures. The plan will need to be incorporated into the operator’s existing employment agreements and contracts for services and must not be in breach of current employment legislation relating to drug and alcohol testing.

The management plan must include mandatory random drug and alcohol testing of individuals who carry out work for an operator that involves undertaking a “safety sensitive” activity (i.e. an activity that could significantly affect the health and safety of any person on board a ship) in any capacity (i.e. an employee, independent contractor, volunteer, or the operator if they are an individual). The content and procedural requirements for the management plan, testing and other related matters will be established by amendments to the “maritime rules”.

Submissions on the Bill are open
The Bill has had its first reading in Parliament in November 2016 and has been referred to a Select Committee for review. Submissions on the Bill are open until 1 February 2017.

We can assist with drafting and reviewing drug and alcohol plans and policies and would recommend that employers in the commercial maritime sector, who are testing for drug and alcohol impairment, seek advice prior to implementing their plans and policies.

If you would like advice regarding drug and alcohol testing, please contact us.

26 January 2017

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.