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Drug and Alcohol Testing in the Workplace: Legal Considerations for NZ Employers 

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In professional work settings, the issue of substance use, particularly drugs and alcohol, has become an important topic. Naturally, you want your business to comply with evolving laws and regulations. Notably, at the moment, the landscape of workplace policies regarding substance use is facing scrutiny. This article will explain key considerations you should bear in mind when conducting drug and alcohol testing in your workplace.

Health and Safety

Drugs and alcohol can severely impact a person’s decision-making capabilities. Further, an individual’s consumption of drugs and/or alcohol can be hazardous to other people and themselves.  

You, as an employer, have health and safety obligations towards your employees. As part of these obligations, you must take reasonable steps to provide a safe workplace. Also, you have a duty to minimise hazards in your workplace. 

According to the Health and Safety at Work Act 2015, a “hazard” includes a person’s actions that could potentially harm someone. A person’s actions can represent a hazard, whether it’s due to tiredness, drugs, alcohol, shock, or another temporary condition. Introducing drug and alcohol testing may be justified if your business operates in a safety-sensitive industry. Naturally, you want to ensure the safety of your employees and others connected to your organisation. For instance, your business may operate within the construction or mining industry.

The Courts have taken the following criteria into consideration:

  • Random testing is justified for employees in roles where drug or alcohol influence could cause serious harm.
  • Test results must adhere to scientific standards and ideally be interpreted by a medical professional.
  • Your employees’ consent is necessary for testing. If an employee refuses the test, you may conduct further investigations. Any results of the investigation may be used to justify disciplinary action.
  • Your company policy stipulates that you handle personal information with the utmost sensitivity.
  • The main goal of the policy is to educate and prevent substance use or abuse.
  • In the case of a positive test, rehabilitation is the primary remedy for the employee.

Pre-Employment Checks

If safety is crucial in your workplace, you may use pre-employment testing. You may use this testing to demonstrate your commitment to managing alcohol and drug-related risks. If you include information about pre-emplyoment testing in your job advertisements, this signals your commitment to safety. Also, this inclusion signals your commitment to risk management. Further, your potential employees are informed at the outset, that they must submit to this test.

If you make use of pre-employment testing, it is advisable that you wait for the test results before making a job offer. This approach avoids any contention about the existence of an employment relationship. In simpler terms, a clean drug test result should precede a job offer. This is in contrast to requiring your new employee to submit to a test, once they have accepted the offer. 

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General Alcohol and Drug Testing in the Workplace 

In general, you can only ask your employees to undergo an alcohol or drug test, if it is a condition in their employment agreement. Your employees are obliged to comply with any legal and reasonable requests from you, their employer. The reasonableness of requiring your employees to take a drug depends on factors. For instance, you need to weigh the need for testing against unnecessarily intruding upon your employees’ privacy.

In general, it is a lot easier to compel your employees to submit to a drug or alcohol test if it is a condition of their employment agreement. If it is not a condition of your employees’ employment, it is harder for you to mandate a drug or alcohol test. 

Privacy Act

The process of drug testing involves handling personal information, and the Privacy Act permits you to collect such information for a lawful purpose. However, you must only collect information that is related to your employees’ work. The collection must be: 

  • necessary for that purpose; 
  • deemed reasonable; and 
  • non-intrusive or biased against the employee.

It is likely, that your obligation to provide a safe and healthy work environment will constitute a lawful purpose for gathering such information. 

In New Zealand, workplace drug and alcohol testing is generally governed by two key legislative instruments. These include the: 

Human Rights Act 

The Human Rights Act 1993 prohibits discrimination on various grounds, including disability. Addiction to drugs or alcohol may be considered a disability under this Act. You must balance the need for drug and alcohol testing with the privacy rights of your employees. Random or blanket testing may be seen as an invasion of your employees; privacy. As such, you should proceed with caution. 

Employment Relations Act

Employment agreements may specify the conditions under which drug and alcohol testing can be conducted. You should ensure that any testing policies are clearly communicated to your employees. Further, you need to ensure that any testing policies are consistent with the terms of your employees’ employment agreements.

Testing Procedures

If drug and alcohol testing is deemed necessary, you should follow fair and transparent procedures. This includes:

  • clearly defining the circumstances under which testing will occur;
  • the types of tests used; and 
  • the consequences for positive results.

 You can only ask your employees to take a drug or alcohol test if:

  • you have a policy on alcohol and/or drugs as part of your workplace health and safety policy; or
  • it is a condition of their employment. 

Reasonable Cause Testing:

Testing based on reasonable cause, is generally more acceptable than random testing. You may have reasonable cause if your employee has behavioural or performance issues. It is imperative that you have reasonable grounds for suspecting your employee is impaired by drugs or alcohol. 

Consultation With Employees

You are encouraged to consult with your employees and their representatives when implementing drug and alcohol testing policies. This can help address concerns and ensure that the process is fair and reasonable.

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Key Takeaways 

In the workplace, both employers and employees need to be on the same page regarding drug and alcohol testing. You should have a clear policy in place, and all your employees should: 

  • know about it; 
  • understand what’s expected of them;
  • know how testing happens; and 
  • the consequences of a positive result. 

It’s important that if you have a safety sensitive work environment you have adequate drug and alcohol policies in place. This to ensure you are able to conduct any drug or alcohol tests as necessary.

If you need help understanding if you are legally able to conduct any workplace drug and alcohol tests, contact our experienced employment lawyers as part of our LegalVision membership. For a low monthly fee, you will have access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.

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Louise Miao

Louise Miao

Associate | View profile

Louise is an Associate in LegalVision’s Employment team. She assists a large range of clients in setting up their employment agreements and workplace policies, while also assisting companies going through a restructuring or termination process.

Qualifications: Bachelor of Laws, Bachelor of Health Sciences, University of Auckland.

Read all articles by Louise

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