Drugs and alcohol in the workplace are a frequently discussed topic, be it because of new case law that refines what is and is not acceptable, or because of changing societal perceptions and norms.
In this blog, we outline the current law on drugs and alcohol in the workplace in the context of a few selected issues that can often be complex and contentious, including subtleties in the wording of drug testing provisions in employment agreements or policies, the different standards for employee drug testing, things to know about reasonable cause testing and random testing, and potential challenges with medicinal cannabis.
Let’s begin with an outline of an employer’s general ability to impose and enforce rules regarding drugs and alcohol in the workplace.
Can an employer stipulate requirements and what format should this have? Every employer has a legal duty under the Health and Safety at Work Act 2015 to take reasonably practicable steps to ensure the health and safety of workers and other persons in the workplace. This involves identifying and managing risks and hazards in the workplace. The effects of alcohol or drug consumption can be a workplace hazard and therefore a risk to the health and safety at work – particularly in workplaces where activities such as driving vehicles, flying, operating machinery, working at heights, caring for other persons, etc, are carried out.
However, even if the workplace does not involve the performance of inherently risky tasks, an employer can still stipulate its expectations and requirements regarding the possession, distribution or consumption of drugs and alcohol at work, or the attendance at work while being ‘under the influence’ of drugs or alcohol (we will deal with the intricacies of this particular terminology further down below).
The bottom line is that an employer can stipulate rules regarding drugs and alcohol in the workplace and in general, it is advisable to do so. Where ‘safety sensitive work’ of the kind referred to above is performed, an employer actually should have rules in place.
An employer’s rules in this respect should be put down in writing and either be stipulated in an employee’s employment agreement, or in a separate workplace policy – unless an employer merely wishes to stipulate that the possession, consumption and distribution of drugs or alcohol in the workplace, or the attendance at work with prohibited levels drugs or alcohol is strictly prohibited, we strongly recommend having a drug and alcohol workplace policy. Your policy should be written, or at least reviewed, by a specialist who has subject-matter expertise and experience with this because the devil truly is in the detail. On that note, let’s take a look at some of those details.
What to include in a drug and alcohol policy? The policy should set out the ‘rules’ in relation to the possession, consumption and distribution of drugs or alcohol in the workplace. Generally, all of these activities should be prohibited. However, provision needs to be made for lawful prescription drugs. A policy may also make provision for allowing alcohol at social company events. In such case, expectations should be stipulated regarding responsible consumption and safe transport after events.
Equally, the policy should prohibit employees to attend work who are or may be “under the influence” of drug or alcohol consumption. It is crucial that the policy defines the meaning of “under the influence” (see below).
It is also common for policies to provide for an employer’s ability to test employees for the presence of drugs or alcohol. It is in this area where your policy matters most, and where – in our experience – most mistakes are being made, so let’s take a closer look into the intricacies of drug and alcohol testing. In doing so, we focus on drug testing in the further article.
“Impairment”, “Under the Influence”, etc – The wording matters!
As drug testing regimes impinge on individual rights and freedoms, a policy to that end, and its application, must meet the legal tests of being lawful and reasonable directions to employees and they will be interpreted and applied against a strict standard. Therefore, the wording and terminology used in the policy matter!
We frequently see policies that use terms like “impairment” or “under the influence” without defining them. This can be highly problematic because even though standardised drug tests can determine the presence of certain substances, they cannot determine actual impairment or being “under the influence”. To avoid the resulting problems, the policy should define the terms “impairment” or “under the influence”, for example by ‘linking’ them to the relevant testing standards (i.e., “under the influence” can be defined as the tested employee returning a drug or alcohol test result that is above the threshold set out in the applicable testing standard).
Drug testing standards – Which one to choose?
On the note of testing standards, the two most common testing methods and standards in New Zealand for drugs are AS/NZS 4308:2008 (the urine test standard) and AS/NZS 4760:2019 (the saliva test standard).
Both methods have its advantages and disadvantages. Oral fluid testing is said to be ‘less invasive’ than urine testing and focusses on recency of drug consumption. It is therefore often argued to be the appropriate testing method to test on actual ‘impairment’. Urine testing on the other hand involves the provision of a urine sample under supervision (hence, the often-raised concern of its invasiveness). In contrast to oral fluid, urine samples cover a larger detection window and provide a better picture in terms of chronic use over extended periods. Urine testing is generally said to outperform saliva testing in terms of accuracy and reliability.
Employers can choose between those standards. Contrary to some commentary we often hear, employers are not obliged to use saliva testing over urine testing – there is no New Zealand case law to this effect. Employers may even ‘combine’ both testing methods, for example by providing that all pre-employment testing, reasonable cause testing and post-incident testing is conducted through urine samples, and that all random testing is conducted through saliva sampling (however, seek specialist advice before choosing this option because there are some important technicalities to consider with this option).
Whichever way it is, an employer’s policy needs to be clear as to what testing method and standard is going to be applied – particularly where the policy ‘allows’ both testing procedures, urine and saliva. Failing that, disputes are pre-programmed, and in general any ambiguity will go against the employer.
Random drug testing
We often see policies that stipulate that all employees are subject to random drug testing. That is perfectly fine if – but only if – all employees work in so-called ‘safety-sensitive roles’. If that is not the case, such ‘blanket’ provision becomes problematic and, put simply, is unenforceable (unless, of course, all employees in non-safety-sensitive roles have freely consented to being randomly tested).
Employers may conduct random testing for the presence of drugs or alcohol if, and only if, the employees that are to be randomly tested work in safety sensitive roles. These could be roles that involve activities such as driving, flying, working at heights, operating machinery, caring for other persons, etc. An appropriately drafted drug and alcohol policy sets out the positions and areas of work the employer reasonably deems to be safety sensitive, so that there are no surprises about this.
There is a further aspect to random testing that can trip up employers in respect of random testing, and that involves the process of deciding who is to be randomly tested. The selection of employees that are to be randomly tested needs to be truly random, i.e., free from the employer’s influence. In the perfect world, a third-party, for example the testing agency selects the employees to be tested on a randomised method. Alternatively, the employer itself does this but putting measures in place that minimise the risk of manipulating the random selection.
Reasonable Cause Testing
As the term suggests, this requires the presence of a reasonable cause that warrants an employee to be tested for drugs. Such reasonable cause can arise from unusual behavioural or physical indicators. An employer’s drug and alcohol should provide examples for such indicators and it may outline how the presence of such indicators should be ascertained by the employer (for example, should it be sufficient for an employee to express a concern regarding a colleague’s behaviour and for the employer to require the colleague to be tested for the presence of drugs on that basis? Or should there be an additional step to verify such concern, for example for the employer to ‘check’ the colleague as well?).
One situation that we have seen time and time again is that an employer finds drugs or drug utensils in the workplace and then plans to subject every employee of that workplace, or a particular part of the workplace (for example, a warehouse), to be tested for the presence of drugs based on reasonable grounds. This is unlawful (unless all of those employees freely consent to being tested)! The same applies regarding an employer’s ability to search employees’ personal belongings.
What about medicinal cannabis?
Since the legalisation of medicinal cannabis and also the seemingly growing societal acceptance of cannabis use for recreational purposes, the lines between what is commonly perceived as being ‘punishable’ in some way and what is to be tolerated have started to blur. Anecdotal commentary from employers suggests an increase of employees claiming that their use of cannabis is for medical purposes. What does this mean for employers?
The Employment Relations Authority or the Employment Court are yet to determine any implications of lawfully prescribed medicinal cannabis on employers’ and employees’ rights and obligations in the workplace. Our present view in respect of prescribed medicinal cannabis in the workplace is as follows:
Every employee has an obligation to disclose anything to their employer that may have an impact on their ability to safely and efficiently perform their duties under their employment agreement. Depending on the employee’s role, or the kind of medication and potential side-effects, prescribed medication, including prescribed cannabis, will likely be a matter that an employee would be required to disclose to their employer – even more so where the employee works in a safety sensitive role or area (in such case, the disclosure of prescription medicine or cannabis to their employer would be required under the Health and Safety at Work Act 2015).
Even though the possession and consumption of prescribed cannabis may be legally permitted, this does not mean that an employee can consume it and safely assume they are not posing any risk to health and safety in the workplace. This has been particularly clarified in a recent determination by the Employment Relations Authority. The Authority stated that “the risk remains the same for an employer and a positive test result arising out of consumption of medicinal cannabis is likely to be a breach of the relevant drug and alcohol policy with the prescription being a factor for the employer to consider”.
In line with this, the fact of there being a prescription may inform the consequences of breaching a drug and alcohol policy, in that it may potentially be a mitigating factor when it comes to determining the reasonableness and justification of any action being considered or taken by an employer. However, the mere fact of there being a prescription does not, in our view, release an employee from their duty to disclose the fact of the prescription if the prescribed medicine, including cannabis, may result in the employee not complying with a ‘zero tolerance’ approach taken by an employer.
An employer’s drug and alcohol policy should be clear about these considerations and your expectations regarding employees fronting up regarding any prescriptions that may be relevant to their work.
Anything else?
Lastly, a drug and alcohol policy should outline how the employer’s expectations and rules can be breached and what the potential consequences could be. For example, it should address potential scenarios such as attempted manipulation of testing procedures and samples and the consequences of non-negative and positive results, including potential suspension, disciplinary action, etc.
We also recommend outlining potential assistance to employees who fail a drug test, or who voluntarily come forward, for example rehabilitation arrangements.
How to impose a drug and alcohol policy?
Once you have created a draft policy (or amended an existing policy), you will need to consult with your employees. If there is a union presence in your workplace, you will also need to consult with the union. Whilst agreement is ideal, consultation does not mean that your employees or a union need to agree with your proposal to implement a drug and alcohol policy, or the content of such policy. Consultation means that you provide the proposed policy and invite your employees’ feedback, and then consider such feedback with an open mind and in good faith before making final decisions in respect of the policy and its content before implementing the policy.
If the proposed policy changes following the receipt and consideration of feedback, you should share the amended policy again with employees and highlight the changes to the initial proposal and the reason for any such changes.
Following this, you can then implement the policy. Whilst not compulsory, you may consider providing a ‘grace period’. For example, you could give notice to your employees that the policy will apply from a set date in a month’s time. This would give employees an opportunity to consider adjusting their out of work behaviours to ensure that they will comply with the policy. You could also consider inviting employees with drug or alcohol abuse ‘problems’ to come forward, and to support them in rehabilitation.
Need Help?
We have written, reviewed, and advised on many drug and alcohol policies across many industries, and we have assisted many employers with the implementation of such policies and all sorts of challenges linked to drug or alcohol use or testing in the workplace, from preventative measures to reactive measures.
We do not only have expertise in relation to the drafting and implementation of drugs and alcohol policies, but also in relation to the interplay with related employment processes, for example, disciplinary procedures, suspensions, etc.
Reach out to us on lowdown@cinchhr.co.nz and we’ll be there to help!
If you would like to purchase our comprehensive Drug & Alcohol Policy, please click the link below. During April you can purchase this at the discounted rate of $200 plus GST. https://www.cinchhr.co.nz/product-page/drug-and-alcohol-policy
In addition to our own expertise, we have partnered up with Work Care Limited, New Zealand’s premiere drug and alcohol testing and risk assessment agency, and we can access the expertise of and refer our members to Karl, Nicky and their team.