Workplace drug testing decision provides new tools for employers

May 2004

By the Employment Team

Employers have sighed relief following the Employment Court's decision in NZAEPMU v Air New Zealand Limited. With drug and alcohol abuse increasingly prevalent, not only in the workplace, but in New Zealand generally, the Court has given employers the tools to ensure that at least the workplace is safe.

This case was eagerly anticipated, particularly following on from the widely publicised decision in Hosking, where the Court of Appeal confirmed the existence of a limited right to privacy. The Employment Court was not convinced, however, that drug and alcohol testing breached employees' privacy.

Tools to fight drug and alcohol abuse

As a consequence, employers now have a relatively extensive arsenal in the fight against drug and alcohol abuse in the workplace. There are now four situations where an employer is entitled to test its employees:

• Pre-employment (which the Court has previously approved) and prior to transferring employees to safety sensitive areas;
  
  
• Following an accident or incident, when an employer can require the relevant employees to submit to tests;
  
  
• When an employer has a reasonable suspicion that employees are under the influence (this was already common practice in many workplaces); and
  
• Randomly, where employees work in safety sensitive areas, and consent to being tested.

Employers cannot, however, test employees carte blanche. The Court outlined a number of factors that must be taken into account before a workplace drug and alcohol testing regime would be fair and reasonable, which include:

• The nature of the employer's industry, and whether there is a pressing need to test employees (for example, the need to test employees on a factory floor is likely to be greater than the need to test office workers);
  
  
• Whether testing will actually have an effect in improving workplace safety; and
  
  
• The reasonableness of the policy.

Guidance on drug and alcohol policies

The Court has also provided some guidance for employers as to what drug and alcohol policies should include:

• The policy must be consent based, particularly in the case of random testing. Consent could be obtained prior to employment, and included in employees, employment agreements, although, the policy can operate on an ad-hoc basis. Refusal to be tested must not result in the presumption of a positive test;
  
  
• Employers are entitled to investigate employees who refuse testing, and possibly instigate disciplinary proceedings. Provided the employer makes the employee's position clear, and provides the employee with sufficient information to make an informed decision, the possibility of disciplinary action will not invalidate consent;
  
  
• The testing should be conducted independently and comply with an accepted best standard;
  
  
• Employers should seek to minimise invasion; and
  
  
• Testing results should be open to medical review.

Conclusion

Although the Court was at great pains to suggest that the result was specific to Air New Zealand, the case does represent a general recognition of the right for employers to test their employees for drugs. What is yet to be resolved is the definition of a safety sensitive workplace. Future litigation is likely to revolve around this issue.

Given the cost involved in testing employees for drug and alcohol abuse, many employers may simply not bother. In the case of random testing, employees who work while under the influence may be overlooked and for this reason, the efficacy of random testing might be questionable. For those employers who decide to implement a drug testing policy, they should do so with caution. While the Court's decision may seem eminently sensible, its boundaries still remain unclear, particularly in relation to random testing.