Olympic Games Reminder For Employers' Drug Policies

August saw Rio de Janerio host the Olympic Games 2016 and the sporting event has faced considerable controversy. Following evidence of widespread drug use in Russian athletes, the International Olympic Committee decided against enforcing an across-the-board ban and instead focused on natural justice principles and individual circumstances to determine eligibility. Although heavily criticised, the decision reflects the attitude New Zealand Employers are required to have towards drug use in the work place. It is a timely reminder for Employers to check their drug policies to ensure they are reasonable and can be tailored to each individual.

New Zealand courts (Employment Relations Authority and Court of Appeal) have emphasised that drug and alcohol policies need to be reasonable. Reasonability will depend on the specific position being filled and the Employee's individual circumstances.

Random testing will only be reasonable where the work is considered to be safety sensitive and there is a risk of serious harm. The courts have given examples of pilots, aircraft engineers, and flight planners as safety sensitive positions. In comparison, random testing would not be deemed reasonable for HR, legal or payroll positions.

If the workplace is not safety sensitive, policies should state that testing will be conducted where there is 'reasonable cause' to suspect impairment e.g. after a near miss, drug use witnessed. Reasonable cause must be specific and directly related to the individual Employee. General suspicion will not be enough.

Clear policies or Employment Agreement clauses must be in place that allow Management to test for drugs. These policies and clauses must be clear so staff are aware just how and when testing will occur and what are the consequences of failures or refusals. Employers also need to follow their own processes very strictly.

Employers should be aware that a positive drug test is not enough to dismiss an Employee. The nature of any consequences or future action will depend on the individual circumstances e.g. degree of intoxication, position held, previous drug test results, and Employee's explanation. All alternatives to dismissal need to be investigated by Employer, including assisting Employees to attend a rehabilitation programme.

Even where an Employee tests positive, the Employee may still be awarded remedies if the test was not deemed reasonable, or the dismissal was unjustified. In assessing a personal grievance claim, no consideration is given to the positive result and the fact that the Employee was incapacitated at the time.

For more information on Drug and Alcohol Policies and how to conduct testing, please see our Drug and Alcohol Management system E-Book.