Drugs, alcohol and work

Generally, an employer may only ask employees and other workers to agree to alcohol or drugs tests if this is a condition of their appointment and in the employment agreement or workplace policies.

Using drugs or alcohol can lead to employee impairment while at work. Poor concentration, carelessness, risk-taking behaviour and errors in judgement can occur. Alcohol and drug abuse not only affects work performance and productivity, but also results in higher rates of injuries, fatalities and absenteeism.

Where possible employers should work proactively with employees on policies and processes relating to the management of the effects of alcohol and drugs in the workplace. Policies and processes are often more effective when these are mainly focused on prevention and protection (minimising the risks) rather than punishment.

Health and safety duties

Under law both employers and employees have a duty to ensure that the workplace is safe.

An employer should provide employees with the highest level of protection from risks as is reasonably practicable. A risk includes dangerous behaviour resulting from drug or alcohol use. Employees have a duty to take reasonable care for their own and others’ safety. Employees must comply with any reasonable policy or procedure relating to health and safety, including a policy on alcohol and drugs.

Pre-employment testing

In safety sensitive workplaces pre-employment testing can be used by employers to show that they are serious about managing the alcohol and drug risks within the workplace. Stating in their job vacancy advertisements that there will be pre-employment testing can help to make it clear that they are serious about managing the risks and help to make sure that potential employees are aware of this from the start.

Where pre-employment testing is being used it is a good idea for employers to wait until the test results have been completed before making an offer of employment, this means there can be no argument that there is an employment relationship in place. In other words there should be a clean drug test result before a job offer is made rather than making a clean drug test a condition of a job offer which has been made and accepted.

Employers wanting to alcohol or drug test employees

Generally, an employer may only require employees and other workers to submit to alcohol or drugs tests if this is a condition of their appointment and recorded in the employment agreement or other document.

Employees have to follow all legal and reasonable requests from their employer. Whether or not it is reasonable for an employer to require an employee to undertake a drug test depends on a variety of different factors. It can mean balancing two factors, eg drug testing may be necessary to protect the safety of employees but may also be viewed as an unreasonable intrusion into the privacy of employees. Testing for alcohol or drugs is much more difficult if it isn’t in the employment agreement.

Employers thinking about drug testing employees should seek legal advice.

Each case will be different but the following are examples of things to take into account.

Safety considerations

Drug testing may be reasonable if it is done with a view to protecting the safety of employees or the general public, for example:

• if the employee works in a safety sensitive area
• if the employee’s work directly impacts the safety of others (eg other employees or the public).

Random testing vs specific testing

Testing a specific employee for a specific purpose may be more reasonable than random ‘suspicion-less’ testing of all employees.

A specific purpose may be where the employee:

• shows signs of being affected by drugs or alcohol.
• has recently been involved in a workplace accident or a near-miss.

Employee’s rights

Drug testing may infringe the rights of an employee which will make drug testing less reasonable:

• an employee’s right to privacy under the Privacy Act 1993 (external link) may need to be taken into account, particularly when considering sample collection procedures, the method of analysis and the handling of tests results
• an employee’s rights under the Human Rights Act 1993 (external link) and the New Zealand Bill of Rights Act 1990 (external link) may be considered, although the New Zealand Bill of Rights Act 1990 only applies to acts done by certain employers.

Employment agreement or workplace policies

• This is a complex area, if employers have jointly developed a process on alcohol and drug use then it is more likely to be followed.
• If your workplace is safety sensitive then a term in an employment agreement or workplace policy which allows for drug testing will make an instruction for an employee to undergo a drug test more reasonable.
• Inserting a term in an employment agreement or workplace policy which allows for alcohol or drug testing needs to be considered carefully. There is a draft clause in the employment agreement builder, however it is important to seek advice if considering.
• Employers should make clear that policies form part of the employment agreement.
• The term or policy must be reasonable. This will depend on the other factors listed. For example, if the term or policy may be unreasonable if it provides for random testing for employees who do not work in safety sensitive areas.

If an alcohol or drug test is positive

The policy should set out clearly the procedure to be followed in the event of a positive test result. This must involve discussion of the results with the employee, and may involve having the sample retested. That procedure will depend on the nature of the industry or work activity, and the health and safety, or reputational, risks in the situation.

A positive test result does not automatically mean that a drug has impaired that employee’s performance while at work. However, a positive test is one of the facts that an employer can take into account to determine whether, on balance, there are reasonable grounds for believing that the employee is guilty of misconduct.

Every process that the employer follows must be fair and they must have good reasons both to test and also to take action.

An example of fair process might be that, before deciding if there is ‘reasonable cause’ to test, the employer would consider:

• the relevant employment agreement and workplace policies
• was there an adverse impact or perceived adverse impact (for example, by other employees or the public) on the individual’s behaviour or work performance or the safety of others
• what have they done before in similar situations
• any comments or information that the employee provided when they were challenged that their impaired behaviour or performance may have been from drug or alcohol use.