Duncan Cotterill Partner Kirsty McDonald discusses the legal framework and challenges of drug and alcohol testing in the workplace. 
Introduction
Drug and alcohol use by employees has been a longstanding issue for workplaces in New Zealand, as has the question of how to lawfully screen for drug and alcohol use in the workplace. Under the Health and Safety at Work Act 2015, employers’ obligations in relation to minimising or eliminating health and safety risks naturally extend to minimising the risk of impairment from drugs and alcohol. This is especially so in safety sensitive industries.
While drug and alcohol testing can be an effective measure to minimise or eliminate this particular risk, employers need to be conscious of the inherent invasiveness of any such process and the privacy implications of workplace screening. These elements bring with them a myriad of legal issues that, if not appropriately borne in mind, can result in claims of unjustified disadvantage and/or dismissal by affected employees.
Getting your documents right
The starting point for any drug and alcohol screening in the workplace is ensuring that the relevant workplace documents allow for testing of workers. In particular, an effective drug and alcohol policy is key to ensuring that drug and alcohol testing can be lawfully carried out in a workplace.
As a general rule, a good drug and alcohol policy should outline the circumstances in which testing can occur in the workplace; the means of testing applied (be it saliva or urine testing); the types of substances being tested for; the consequences of returning a non-negative test (or refusing to submit to a test without reasonable cause); and any support that might be available.
While employers do have the right to introduce or amend drug and alcohol policies from time to time following consultation, it is also important to ensure that any policy is consistent with the terms of any prevailing employment agreement.
Oftentimes relevant employment agreements will be silent on the issue of drugs and alcohol but instead contain a generic provision requiring employees to abide by any reasonable policies that may be adopted or amended from time to time. While this can certainly extend to the introduction of drug and alcohol policies, employers will at all times need to ensure such policies are reasonable, taking into account the particular circumstances of each specific workplace. When implementing such a policy, employers must also consult with affected employees prior to its implementation.
When can you test?
While drug and alcohol testing in the workplace will always need to be carried out in accordance with any prevailing policy and employment agreement, as touched on, all screening also needs to balance the overarching requirements of reasonableness.
Pre-employment screening
Pre-employment drug screening is a practice that is widely used in a number of industries and it is clear that, when used appropriately, pre-employment drug screening can be a useful tool for employers, particularly in safety sensitive industries. With that said, if pre-employment screening is not widespread in an industry, employers should also be mindful of managing ‘candidate care’ during employment application processes.
From a legal standpoint, while employers certainly need to be alive to prospective employees’ rights to privacy and the inherently invasive nature of any form of drug testing, pre-employment screening is reasonably straight forward. Typically an offer of employment is expressly conditional on the return of a negative test and it is made clear that the employment relationship will not commence until after that time. If a prospective employee then fails to return a negative sample, the conditions of the offer of employment will not have been met and the offer can simply be withdrawn at that time.
Reasonable cause testing
If an employment relationship has commenced, the circumstances in which drug and alcohol testing can be lawfully conducted are limited. One commonly used form of testing is where the employer has reasonable cause to believe that an employee is at risk of impairment due to the consumption of drugs and/or alcohol.
If an employer is going to carry out reasonable cause testing, consideration should be given to what reasonable cause indicators might look like. Generally these will be expressed in a non-exhaustive list of reasonable cause indicators such as excessive lateness, odour of alcohol, violent or erratic behaviour, bloodshot eyes, or impaired motor skills.
Post-incident testing
Drug and alcohol testing can also be reasonable if it is carried out following an incident, accident or near miss in the workplace. This is particularly so when an employer has reason to believe that an accident or incident in the workplace may have been as a result of impairment due to drugs and/or alcohol.
As with all workplace drug and alcohol screening, “reasonable cause” and “post-incident” testing must be carried out in accordance with the relevant workplace policies.
Random testing
The random testing of employees can also be justified in some cases, although, as random testing does not rely on any reasonable suspicion on an employer’s part, it can only be used in limited circumstances.
Random testing is typically intended as a deterrent for drug and alcohol use where relevant employees are in a safety sensitive area or if an employee’s work directly impacts the safety of others. Risk of impairment in these areas can have catastrophic consequences; and in these situations, intrusive monitoring methods that are generally considered unreasonable (i.e. random testing) can be justified with reference to the overriding obligations of health and safety.
With that said, employers need to be conscious that random ‘suspicion-less’ testing can only be carried out in genuinely safety sensitive roles, assuming of course that this is provided for in the policy.
It is also important to note that when ‘random testing’ is carried out, it must be truly random. Even if employees are in safety sensitive roles, random testing does not allow for employers to test employees based on a ‘hunch’ or mere suspicion. Many employers fall down by calling what is effectively a ‘reasonable cause test’ or a ‘post-incident test’ a random drug test.
Tests and results
In addition to considering when testing will be carried out in a workplace, employers also need to give consideration to how that testing is conducted. In New Zealand the preferred standard for drug testing is usually urine testing (as opposed to saliva testing). This is because it is governed by AS/NZS 4308:2008 (Urine testing standard) and has been designed to minimise false positives. It is also more effective than saliva testing at detecting certain drug use.
The initial results of any such test will be either negative, or non-negative. Non-negative test results will then need to be sent to an accredited laboratory for more detailed testing and to determine if the results are positive.
Where appropriate, alcohol testing will generally be carried out with a breathalyser, ideally from a testing agency that complies with Standard AS 3547-1997. Results from testing of this kind are available immediately, making it a straightforward method of testing without delays that are usually present in urine testing.
Investigation process and disciplinary action
If an employee returns a non-negative/positive sample to a test, or should they refuse to undertake reasonable testing in accordance with their employment obligations, the next consideration is whether and how to implement any disciplinary action. If disciplinary action is taken, it is crucial to strictly adhere to the relevant drug and alcohol and/or disciplinary policy. A failure to apply and follow a policy can render any subsequent dismissal (or indeed any disciplinary action) unjustified.
This point has been demonstrated time and again through the Employment Relations Authority and Employment Court which have routinely held that, in order for any disciplinary action to be justified as a result of a positive test, an employer must have strictly complied with all elements of the drug and alcohol policy and followed a fair and reasonable disciplinary process in accordance with the Employment Relations Act.
In practical terms, this means that, when dismissing an employee for breach of a drug and alcohol policy, the employer must ensure that the testing (including the reasons for and the manner of testing) strictly complies with the relevant policy; the employee is given an opportunity to explain a failed test; and the employee’s explanation for the failed test is genuinely considered. If the employee does not give an explanation, or if their explanation is not accepted, then this should be put to the employee, along with proposed outcomes (such as disciplinary action) for response, prior to any disciplinary action being confirmed.
Drug and alcohol testing in the workplace is not without controversy. However, the requirement to maintain a safe workplace remains paramount. A good drug and alcohol policy can be an invaluable tool for managing health and safety in your workplace, provided any such policy is implemented fairly and administrated reasonably so as to balance employees’ rights with employers’ obligations.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. If you have any queries about this article or issue, please contact the author.
Partner Kirsty McDonald is focused on providing strategic and pragmatic advice to a broad range of clients in New Zealand. Her expertise includes disciplinary and performance matters, restructuring, personal grievances, industrial relations, restraints of trade, protection of confidential information, workplace investigations and the employment aspects arising from commercial transactions. Sectors she is involved in advising include education, manufacturing, construction, forestry, distribution, transportation, professional services and IT. Kirsty is also heavily involved in the health and safety space regularly acting for clients facing prosecution. She is an experienced advocate, having represented clients in the Employment Relations Authority, the Employment Court and the District Court. Kirsty is a member of the New Zealand Law Society and Auckland District Law Society. Contact Kirsty at kirsty.mcdonald@duncancotterill.com or connect via LinkedIn 
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