Businesses Need to Respond as the Silly Season Increases Risks of Intoxication

Published November 22, 2020 (last updated January 25, 2022) -
employee getting drug alcohol tested

Employers have a responsibility to provide a safe workplace by eliminating any dangers that could pose a health and safety risk to themselves and staff. It is an accepted principle by the Employment Court and Employment Relations Authority that drug and alcohol testing can be an intrusion on the privacy of the individual. However, it can be justified on health and safety grounds.  

While testing can infringe on one’s privacy, avoiding it can otherwise undermine the high standard of safety a workplace should uphold, according to Employsure, New Zealand’s largest workplace relations advisor. 

“A safe workplace involves an employer identifying and managing health and safety risks by either eliminating or minimising them as reasonably practicable. Likewise, employees have an obligation to take reasonable care of their own health and safety and ensure their actions don’t jeopardise the health and safety of others,” said Employsure Managing Director, Ed Mallett. 

“Testing requires careful consideration and action, as it can result in an employee losing their job. There’s often a strict threshold for establishing if an employee should be terminated for being impaired, and a proper process should be followed in accordance with business policy.” 

When looking to implement testing, employers need to consider whether it is relevant and necessary in their workplace. There are certain industries where drug and alcohol testing is required, while other businesses just want to adopt a zero-tolerance approach. 

If an employer wants to introduce testing for the first time, they must seek assistance from a professional to ensure they’re abiding by the law, and have the testing carried out by an accredited lab. A policy should be established to clearly outline the rationale for testing, the situation for when testing may occur, the processes involved, and the consequences of a positive result or a refusal to undertake a test.  With existing employees, an employer is not allowed to unilaterally impose a drug and alcohol testing policy, so it is essential to consult with employees and consider their feedback before implementing the policy.   

The policy can also include counselling or support measures for those suffering from a dependency. Without a proper process, testing can lead to a successful personal grievance or privacy complaint. 

Further legal issues can arise where the process following a positive test is inconsistent with the process set out in a business’ policy, individual employment agreement or collective agreement. Some methods test for impairment, while others test for traces in the system. Employers can run into issues when they seek to terminate an employee who might have traces of drugs in their system but aren’t actually impaired or pose a risk. 

Those who return a positive result also cannot be immediately dismissed on the spot. Any disciplinary action must be supported by solid evidence and the employee’s feedback should be sought before an outcome can be reached. Procedural fairness through a disciplinary process may still be required to establish grounds for terminating. Skipping this can lead to successful compensation claims, or even reinstatement. Employers should be trained on the potential legal risks involved, and make sure they don’t deviate away from business policy. 

“If a business policy is in place which reasonably requires an employee to comply with the lawful screening process, refusal can ultimately lead to disciplinary action,” continued Mr Mallett. 

“Employees themselves should be educated on what is expected of them, including reporting to management if they are on medication that could impact their work.  Re-testing may be required using the same method as the initial test, and conducted by a quality assured organisation.  

“Importantly, business owners need to consider the financial cost of directing an employee to undergo further medical testing associated with the policy,” he concluded. 


Media Enquires: 

Matthew Bridges
[email protected]

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