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.
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.
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.
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.
It is a good idea for employers to have a robust workplace alcohol and drugs policy that clearly states what is acceptable in the workplace, and what is not, and the consequences of not following the requirements of the policy.
The policy should have clear procedures for what happens if employees do not follow the policy and be clear about what may happen for the individual and their employment. It may include references to other organisation policies and procedures such as workplace investigations, disciplinary procedures, warnings, termination, counselling support or employee assistance programmes, and the like. The aim of the policy should be prevention, education, training and rehabilitation.
Iit is important that any development or review of a workplace alcohol and drugs policy should be carried out in consultation with employees; employers could include the health and safety committee if there is one. Joint development of the policy will help to gain support and commitment to it.
A workplace alcohol and drugs policy must be reasonable. This will depend on the other factors listed. For example, the term or policy is likely to be considered unreasonable if it provides for random testing for employees who do not work in safety sensitive areas. The policy might cover:
- the employer’s policy on the use of alcohol and drugs at work
- the employer’s policy on the use of alcohol and drugs when not at work but when that use might impact the employee’s behaviour or performance at work
- how alleged breaches of the policy will be investigated and managed, including disciplinary action, and other possible consequences
- how workers with alcohol or drugs use problems might be identified, or identify themselves, and the support and assistance that the organisation is willing to provide
- educational materials, training and programmes that the employer provides or supports.
In particular, the policy might deal with:
- the purpose and intent of the policy
- who is covered
- the responsibilities of the employer, employees, other workers, and other people
- what is acceptable, and what is not acceptable
- roles and responsibilities for monitoring and implementing the policy
- how the organisation will manage and control alcohol and drugs and their use at work
- the organisation’s approach to prevention, education, training, screening, assistance or rehabilitation
- the procedures the organisation will follow when it becomes aware of an alcohol or drugs problem
- the actions that may be taken when the policy is breached, and the possible consequences of those actions
- details of support services available to employees and other people.
The policy must be developed carefully, so that it can apply fairly and equally across the organisation. It would be a mistake, for example, to say the use of alcohol by employees who work in a customer facing role while at work is not allowed, yet allow managers to drink while entertaining clients to lunch, it might be seen as inconsistent to ban “Friday night drinks” and yet allow alcohol to be served at a staff Christmas party. It is important to carefully consider how far the workplace wants to go and what the impact of a policy might be, while developing.
The policy must be consistently enforced. There should be no exceptions. It would be better to have a less strict policy if the organisation wasn’t sure whether it could police and enforce, for example, an alcohol-free policy across the organisation.
Many organisations refer employees to an Employee Assistance Programme (EAP) or other counselling services where alcohol or drugs problem are suspected.
If specialist EAP services are not available, other professionals (e.g. general practitioners or addiction specialists) could be approached. A local hospital should be able to suggest possible sources of advice or assistance.
Sometimes an employee needs time off work for to attend a programme. This can be covered in policies but, as each situation is different, the employer must be willing to discuss with the employee how treatment and rehabilitation will be handled, what support the employer can give, and how much it can contribute to treatment and related costs.
The aim should be to have the employee return to full and normal work as quickly as possible, consistent with the needs of the treatment and rehabilitation programme.
The employee may remain at work while receiving treatment assistance. If this happens the employer should make sure its expectations for the employee’s work performance and behaviour are fully understood. The consequences of not meeting those standards should, equally, be clear. They should also agree on the support and assistance that the employer will provide while the employee is dealing with the alcohol and drugs use problem.
Employers, managers and employees should be made aware of the signs that people give when alcohol and drugs use impairs their behaviour or performance and of the risks and responsibilities involved.
Providing information and training should make everyone in the workplace more aware of the signs to look for, and of how to raise this with their manager or employer.
It should be emphasised that the aim of providing information and training is about developing the right environment based on prevention.
Using external people to lead information and training programmes can be a good approach. Managers and employees should participate in the programmes on an equal basis.
The International Labour Organisation Code of Practice on the management of alcohol and drug-related issues in the workplace (external link) emphasises a preventive approach.