Drugs and alcohol can make an employee less effective, struggle to concentrate, careless, unable to make rational decisions, amongst other behaviour changes, but most importantly of all a hazard to themselves and other employees.
Employers have an obligation to take reasonable measures to provide a work environment for their employees and others, that minimizes the hazards at work.
What is a hazard and what is reasonable?: As defined at clause 16 of The Health and Safety at Work Act 2015 (“HSW”) a “hazard includes a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)”.
In the case NZ Amalgamated Engineering Printing and Manufacturing Union Incorporated & Ors v Air New Zealand Limited & Ors (2004) provided some factors to take into consideration what reasonable is, such as:
- Random testing is considered reasonable if employees work in a role where there could be a risk of serious harm from being under the influence of drugs and/or alcohol.
- The test results need to be assessed to a scientific standard and preferably a medical trained individual interpret the results.
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The employee must give their consent to being tested, if the employee refuses to give consent this refusal will be taken into consideration during the investigation and trigger a disciplinary investigation.
- The company policy should handle employees’ personal information with sensitivity.
- Education and avoidance of use or abuse of substances should be the main goal of the policy.
- Rehabilitation should be the first remedy for an employee when a test is positive.
The starting point for drug and alcohol testing in the workplace is for employers and employees to be on the same page. This is achieved by the employer having relevant documents (such as a specific policy relating to drug and alcohol testing) in place and every employee is aware of these documents; what is expected of them, how testing will be conducted, consequences of testing positive, etc.
Privacy Act 1993 and Drug and Alcohol Testing:
Drug testing involves the collection, storage and use of personal information. The Privacy Act allows employers to collect personal information but only for a lawful purpose, which relates to their work, and the collection must be necessary for that purpose.
As touched on earlier, this is why the information gathered (e.g. a sample) must be collected lawfully. The collection must be seen as reasonable and must not be intrusive or biased on the employee. With that said the employer’s obligation to provide a safe and healthy work environment under the HSW will likely amount to a lawful purpose for information gathered.
Drug and alcohol testing in the workplace remains a contentious topic, nevertheless drug and alcohol testing will remain in the workplace for the foreseeable future. As drug and alcohol testing is
looked at on a case-to-case bases, it is recommended that you (as the employee or as the employer) contact your lawyer to discuss your position.
