Flying High – Drugs in the Workplace

17 August 2011

By Sarah Townsend, Associate and Summer Pringle, Solicitor

First published The Press, 23 August 2011

Growing use of synthetic cannabis could leave employers exposed if their staff have accidents in the workplace.

Employers wanting to test workers for synthetic cannabis use need to review their drug and alcohol policy now that the Government has banned 16 synthetic cannabis-like substances, including Kronic.

The New Zealand Drug Detection Agency (NZDDA) last month reported that out of 39 random samples which tested negative for cannabis and methamphetamine, 26% tested positive for synthetic cannabis. The agency now also is able test for synthetic cannabis.

Employers are required by law to identify hazards at work and to take all practicable steps to avoid employees from suffering harm in the workplace. Drugs and alcohol are specifically identified as potential hazards. The term “drugs” can include illegal and legal drugs such as synthetic drugs and prescription drugs which affect cognitive ability.

Many employers already have drug and alcohol policies in place, which enable them to conduct drug and alcohol testing on employees in certain circumstances and to instigate disciplinary proceedings up to and including dismissal where the test results are positive. These policies have explicitly been endorsed by the courts as a device for actively managing health and safety within the workplace, particularly in safety sensitive industries.

Generally, drug testing will be permissible:

After an accident/incident or near miss.
Where the employer suspects that the employee is affected by the use of alcohol and/or drugs.
Randomly, where employees work in “safety sensitive” position.
As part of an application for employment, or transfer to a safety sensitive position.

Statistics show that 30% of post accident/incident and reasonable cause drug tests are positive and that 13% of random drug tests and 8% of pre-employment drug tests are positive.

Drug tests do have limitations. Even though a drug test may return a positive result, this does not necessarily mean that the employee was under the influence while at work. Each case needs to be considered on its own merits.

But, employers cannot instigate such testing unless there is an express drug and alcohol policy in place. And even then, an employee can refuse to undergo a test. In those circumstances, an employer may be able to draw adverse conclusions from such a refusal.

Employers who want to introduce a drug and alcohol policy, must consult with staff, explaining why a policy is necessary and how it will be implemented.

An employee’s right to privacy must be balanced against the requirement to have a safe and healthy workplace, where employees are not putting themselves and others at risk by being under the influence of drugs or alcohol at work.

By Sarah Townsend (associate) and Summer Pringle (solicitor), employment law specialists with national and trans-Tasman firm Duncan Cotterill. S.townsend@DuncanCotterill.com

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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