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Alert24 - Safeguard Update

Legal framework for drug policies

Legal framework for drug policies
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New Zealand

Workplace drug and alcohol policies will receive legislative support and guidance if a member's bill, drafted by the government MP for Northland Mike Sabin, becomes law.

Sabin, a former police officer who also ran a drug education company for five years, is proposing amendments to the Employment Relations Act to spell out the steps an employer may take to prevent, identify and manage drug or alcohol issues in the workplace.

"More and more people are doing drug testing, but there is no prescriptive legislative framework that employers or employees can refer to," he says. "The implications for employers are becoming increasingly significant if they don't manage a hazard, yet in the case of substance-related impairment, the law is largely silent on how they should go about it."

"Many current practices could, if challenged, be interpreted as unlawful on the basis of current case law, so there is a need to give everyone clarity about what the expectations are."

He chose to frame the bill - the Employment Relations (Safe and Healthy Workplaces) Amendment Bill - as an amendment to the ERA rather than the HSE Act because of the more prescriptive nature of employment law.
It covers not only illicit drugs and alcohol, but also so-called legal highs, and prescription medications, requiring employees to disclose any medication they use that may cause impairment.

"They don't need to disclose the reason they are taking medication, but the onus is on them to say that they are taking it."

For the most part, however, he says the bill simply codifies practices that are already commonplace. "Almost everything in there is what currently happens in the workplace. I've just attached a proper legal framework to it."

On the topic of random testing, however, the bill moves away from the Employment Court's decision in a 2004 case involving Air New Zealand workers. While it stated that random testing should be reserved for safety-sensitive areas, the bill allows employers to randomly test employees in all work areas.

It was this decision and other case law - which gave divergent views on the legality and appropriateness of urine testing for drug use, and even suggested employers had no legitimate interest in any drug activity that occurred outside working hours - that prompted Sabin to develop the bill.

"In fact the potential danger from some drug use - in particular methamphetamine - may be heightened after the direct effect of the drug has worn off. [Under the influence of the drug] they may have been awake for days on end, so when they stop taking it they'll experience things like hallucinations, depression, extreme fatigue, lethargy and an inability to concentrate."

The bill gives employers the right to address hazards arising from both direct and indirect consequences of drug use, using the term "labouring under drugs or alcohol" to describe any loss of job capability resulting from substance use.

Key to the bill, however, is the development of a workplace drug and alcohol policy - something Sabin believes is at the heart of effective management.

"People used to say 'we have zero tolerance for drugs', but what does that mean? You've got to have processes behind it. Businesses which have robust drug testing and education programmes have very few problems, but those that don't have anything in place have lots of them."

The bill lists what drug and alcohol policies may contain, but also provides some latitude for tailoring them to individual situations. Testing regimes, for instance, may use "breath ..., bodily sample, or any other means specified by the employer's policy" and may be done randomly, pre-employment, post incident, for reasonable cause, or in other any other manner consistent with the policy.

However searches of lockers, desks and other workplace areas, and the use of drug dogs, is only permitted if it is "reasonable in the circumstances and the employer has a policy in place allowing such searches."

Those who return positive tests, refuse to be tested, or are found to be concealing drugs or alcohol may be instantly suspended, with or without pay, or even summarily dismissed. Instant interim suspension, on pay, is also permitted if an employer suspects drug or alcohol use, in circumstances where safety is at risk, and this may be followed by a longer suspension, with or without pay, until the matter can be investigated.

Sabin stresses, however, that while the bill establishes the right to take strong action for breaches of the drug and alcohol policy, employers are still bound by the good faith provisions of the Employment Relations Act, which require any disciplinary action to be justifiable and reasonable in the circumstances.

"Dismissal is one of the worst ways to deal with the issue. Employers spend a lot of time, money and energy recruiting and training people so, in my experience, the last thing they want to do is sack someone."

Although his bill does not spell out the option of rehabilitation, Sabin says that when working in the industry he found most employers had comprehensive disciplinary procedures for dealing with drug use and would support employees through EAP or drug counselling.

The bill is currently in the parliamentary ballot of member's bills and will only be debated if it is selected.



People Mentioned:
Mike Sabin
Organisations Mentioned:
Air New Zealand
Reference No:

From Alert24 - Safeguard Update

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