EMPLOYMENT LAW : Workplace Drug Testing – A Positive Result?

Workplace drug testing is no longer novel concept. The courts have grappled with this issue for years, sparking plenty of controversy. Such testing creates tension between workplace safety on the one hand and the right to privacy contained in the Privacy Act 1993. Employers have an obligation to provide safe and healthy workplace, but to what extent can an employer control the lifestyle choices made by their employees?
The Employment Relations Authority (the Authority) has recently had to deal with various issues relating to drug testing in the workplace. In one, the Authority upheld the dismissal of an employee who refused to undergo drug test, and in the other, the Authority said that an employee who tested positive for Class drug was unjustifiably dismissed.
In Parker versus Silver Fern Farms 1 the Authority upheld the dismissal of meat processing plant employee who refused to undergo “reasonable cause” drug test that was in accordance with company policy and his terms and conditions of employment. The company conducted search of employees’ vehicles pursuant to this policy, and found marijuana in Parker’s car. As the search was being carried out, Parker was also seen drinking the contents of container and swallowing something.
Parker then left the premises, despite being asked by management to remain on site. He advised his union that he was “stressed”, and remained on paid sick leave for more than month. The company advised Parker that in order to return to work he would have to undergo “reasonable cause” drug test. Parker refused and, consequently, was dismissed. The Authority said that the dismissal for refusing to take “reasonable cause” drug test that made up part of the terms and conditions of his employment was justifiable.
In Bush versus Marlborough Lines 2, the Authority ruled that the dismissal of Bush, an employee who tested positive for an amphetamine-class drug, was unjustified. Bush was an arborist who was required to use potentially dangerous machinery. He had previously been warned after turning up to work smelling of alcohol.
About month later, his supervisor noticed that he did not seem to be “with it”. meeting was held and Bush agreed to undertake drug test, which was arranged through the company’s independent health nurse (rather than registered medical practitioner as required by the employment agreement). The drug test confirmed the presence of an amphetamine-class substance in his system. Bush was subsequently dismissed.
However, it transpired that Bush had been taking Sinutab, drug containing pseudoephedrine hydrochloride, an amphetamine-class substance, to help him get over heavy cold. His partner had bought this for him from pharmacy. She attended the disciplinary meeting to explain this, but the employer said his level was too high for this to make difference. It did say though that if there was second test and it was negative, they would discuss it with view to giving his job back.
Bush arranged second test which was negative in all respects. The employer refused to discuss reinstating him. One of the witnesses he called was doctor, who said that if the dose of pseudoephedrine was low, its presence in urine would disappear reasonably quickly, and that someone taking the drug would show signs of dizziness.
The Authority was satisfied that the medication was responsible for the initial positive test, and that the dosage in his system was low. It said the employer ignored the fact that the initial test was merely screening test, even though the test results contained statement that they were not suitable for “medico/legal purposes”. While it had genuine grounds for concern, it had overreacted to the test result, and moved to dismiss Bush without considering the other alternatives set out in the employment agreement (such as rehabilitation programme).
Lessons to be learnt: The courts have recognised that drug and alcohol policies are an important tool in ensuring healthy and safe working environment. This is evident from the Authority’s decision in Parker that the dismissal of an employee for refusing to take drug test was justified. Interestingly, other employees who did take the “reasonable cause” drug test and tested positive were only given final warning. This shows that the consequences of refusing to undergo drug test can be worse than positive test result.
The Bush decision also demonstrates the importance of ensuring that tests are performed by an appropriately qualified person and that any results are interpreted correctly. Employers should also have robust drug and alcohol policies in place (preferably incorporated into employment agreements), so as to enable the enforcement of proper drug testing regime.
Despite being controversial, drug and alcohol testing undeniably helps to ensure safe working environment. And that must be positive result.

Greg Cain is partner with law firm Minter Ellison Rudd Watts. Amy Cunningham is solicitor with the firm.

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