Drug Testing - Getting it Right
With this year’s General Election, voters are also confronted with two referendums on which to vote. Without going into the details or pros and cons of these referendums, one will ask voters whether they support the proposed Cannabis Legalisation and Control Bill, which has been developed to help give New Zealanders an idea of how the law might work.
Regardless of whether or not this referendum is supported employers need to be thinking now what this may mean for their business. The legalisation of cannabis does not change an employer’s obligations to ensure their workplace is a safe and healthy environment for workers, customers, suppliers, and visitors.
Just as an employer can act if an employee is under the influence of alcohol when they come to work, the employer will still be able to act if the employee is under the influence of drugs when they come to work.
Businesses need to seriously consider whether they need a Drug and Alcohol Policy to make it clear to their employees how drug (or alcohol) impairment may be handled. Some employers may rely solely on a clause in their Employment Agreement. While this may open the door to testing, the wording of that clause will determine the effectiveness of the approach you may be able to take.
By way of example, in 2017 an employee of a farm was suspected of taking drugs. Their Individual Employment Agreement (IEA) provided for drug testing that was in accordance with “a Drug and Alcohol Testing Policy (which may be introduced by us at any time) or according to the testing policy of an independent agency engaged to carry out the testing.” This particular employer, upon wanting their employee to undergo a drug test, attempted to introduce their own Drug and Alcohol Testing Policy. However, because the policy they purchased was subject to copyright, they were unable to copy this policy, so gave the one copy they had to the employee to read and return overnight. Needless to say that did not work out and the employee asked for more time to read the policy and take legal advice. Long story short, the employer then looked to rely on the testing agency’s policy, however failed to provide the tester’s policy.
Because the IEA stated how testing would be carried out, and because the employer did not follow this process correctly, this situation ended up messy for both parties. The employee lost their job; however the employer was penalised for not following a substantively and procedurally justified process.
The Employment Court cited the principles set out in Parker v Silver Ferns Farms Ltd in 2009 which included among other things, “Employee drug testing regimes impinge significantly upon individual rights and freedoms. Not only must policies and their application meet the legal tests of being lawful and reasonable directions to employees, but, where these are contained in policies promulgated by the employer, these should be interpreted and applied strictly.”
What this means is, if your Employment Agreement refers to drug and testing in accordance with a policy, or the testers policy, then you must follow that policy. If you don’t have a policy yet your Employment Agreement refers to one, then you may be limited as to whether you can lawfully carry out a drug test.
If you refer to a policy, you must have that policy in place and follow it without deviation. The policy ideally should set out the process for a test and the steps to be following if the testing returns a positive result as well as consequences of having a positive result and also what happens if an employee refuses to have the test.
If you do not have a policy, and you need to implement one then you must consult on that proposed policy with your employees prior to implementing it. This not only draws their attention to how you would respond to drug impairment, it also gives employees an opportunity to provide input on the policy. Once you have considered all feedback and finalised the policy, you should once again provide employees with a copy of the final policy. You may also use this opportunity to get your employees to sign an acknowledgement form that confirms that they have received, read, and understand the policy and had an opportunity to seek any clarification on its content.
If you rely on the policy that your testing agency uses, then in good faith you should provide that agency’s policy to your employees, so they are aware of its contents and how they apply in your place of work.
Contact McKone Consultancy if you require assistance with reviewing or developing and implementing a Drug and Alcohol Policy that is fit for your workplace.
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