Steps for implementing a workplace drug and alcohol policy in New Zealand

Drugs and alcohol in the workplace can present real problems for employers, exposing your business to safety risks, damage to productivity and team culture, or even legal issues.

If an employee shows up to work impaired or raises concerns about substance use on the job, many employers aren’t sure what they can (or can’t) do. Can you send an employee home? When can you require drug and alcohol testing? And what needs to be in place before you introduce a workplace testing programme?

In this blog post, we look at how you can manage workplace drug and alcohol risks safely, lawfully, and with confidence. We cover:

• What you need to consider before introducing testing.
• Whether you need to create a drug and alcohol policy.
• How to handle situations where impairment is suspected.
• What a fair and defensible process looks like in practice.

What is a drug and alcohol policy?

A drug and alcohol policy sets out in writing the rules, expectations, and safety measures regarding alcohol and drugs in the workplace environment.

A drug and alcohol policy:

• Helps employers and employees understand what’s acceptable in the workplace.
• Specifies how issues will be dealt with and the consequences for any breaches of policy.
• Defines testing procedures for alcohol and other drugs (if applicable), e.g. random testing or when a worker's behaviour, actions or conduct (whether observed or reported) provide reasonable grounds for targeted testing.

Does my business need a drug and alcohol policy?

Under the Health and Safety At Work Act, every business is responsible for ensuring the health and safety of workers and others, including the public, “so far as is reasonably practicable”.

Workplace intoxication presents serious health and safety risks:

• To the intoxicated person.
• To others affected by their actions, e.g. workmates, customers.
• To members of the public (e.g. if your employee drives a vehicle or operates machinery in a public space).

There are also potential financial consequences if intoxication leads to an accident or injury, such as increased ACC levies, WorkSafe charges and fines, or even criminal prosecution.

So having a drug and alcohol policy that explains expectations and how breaches of policy will be managed provides transparency and helps meet your health and safety obligations (especially if you are introducing, or already using, drug and alcohol testing).

What the policy should cover

A robust drug and alcohol policy should define the organisation’s expectations around the use of alcohol and drugs (both illegal drugs and prescription/over-the-counter medications) during work hours, including “work-associated” events such as staff Christmas functions or customer lunches.

Make sure the drug and alcohol policy contains:

• The company’s position on the consumption of alcohol or drugs and intoxication in the workplace.
• Who it applies to, e.g. management, employees, contractors, sub-contractors.
• Employees' duty of care to ensure they are not impaired or affected in a way that may put themselves or others at risk.
• What action will be taken if a worker is suspected of being affected by drugs or alcohol while at work.
• What the drug testing regime is (if any).

As well as detailing the consequences for breaches of policy, you could also cover what support is available to workers who want to seek help for drug or alcohol problems, e.g. through your Employee Assistance Programme or other specialist help.

Once you have developed your drug and alcohol policy, ensure all workers read and understand the policy, and include it as part of your onboarding and training procedures.

You should also regularly review the policy - so it keeps up with the needs of the business and any scientific advances or social trends - and remind workers about it, e.g. during team meetings, before work events.

Drug and alcohol testing in the workplace

Drug and alcohol testing can be a valuable tool for managing workplace safety, but it isn't necessarily appropriate for every organisation. You need to assess the risk to health and safety that drug and alcohol use (including impairment or intoxication) poses to your workers and other stakeholders, and balance that against other factors, e.g. employees’ right to privacy, costs.

Generally, drug and alcohol testing may be suitable if:

• You have roles where impairment or mistakes could create safety risks or cause harm to employees or other people, e.g. in forestry operations, workers operating heavy machinery or working with hazardous chemicals, truck drivers.
• Employees have arrived at work showing signs of impairment or intoxication, e.g. slurred speech, poor coordination, unusual behaviour.
• You use testing as part of your pre-employment process, to manage potential H&S risks.
• Post incident, where something has happened, and you want to understand whether intoxication was a factor.
• It’s a requirement for sites that your employees work on, e.g. you are a subcontractor to a large construction site.

There are two types of workplace drug and alcohol testing:

• Targeted testing - testing individual employees for specific reasons, e.g. because they’ve been involved in a health and safety incident, or because their behaviour or appearance suggests they could be under the influence of alcohol or drugs.
• Random testing - testing employees at random because of the safety-sensitive nature of their job, even if they don’t show signs of impairment.

When is workplace drug testing appropriate?

Based on your general health and safety obligations under the Health and Safety At Work Act, you have some authority to test employees for drug and alcohol use so long as it is reasonable, e.g:

• As part of your pre-employment checks for safety-sensitive roles.
• After an incident, e.g. accidents or near misses.
• When you have reasonable cause to believe an employee is impaired (more on this shortly).
• When other stakeholders require it, e.g. your business contracts its services to another organisation.
• As part of an employee’s return-to-work plan.

However, you should start by determining whether there is a real workplace risk or problem that drug and alcohol testing would help address:

• Is there a drug or alcohol problem in your workplace (e.g. there have been situations where employees have arrived at work intoxicated or impaired)?
• What is the nature and extent of the problem?
• Could an employee’s drug or alcohol use impair their ability to work or pose a safety risk to themselves and/or others?
• Is testing the most effective way of dealing with a suspected issue? There could be alternatives that are as effective but less intrusive, e.g. supervision, drug and alcohol education, or confidential counselling.

WorkSafe has more information on testing for drugs at work.

The differences between impairment and intoxication

At work, what we need to be concerned about, from a health and safety perspective, is impairment. Employees can be impaired (e.g. slow reaction times, poor decision making, loss of balance) for lots of reasons - these can include a poor night’s sleep, underlying health conditions, or medication which causes drowsiness.

You could test for impairment with a subjective "balance test" or by using software that assesses responsiveness, but even if an individual shows signs of impairment, it can be difficult to prove what it is related to, as it could be caused by an underlying condition or other factors.

This is where testing for the presence of intoxicating substances is useful. There are a range of testing methods - e.g. urine, saliva, blood, breath - and testing can identify a range of substances and accurately measure the amounts present.

While the tests can’t accurately judge whether a substance is causing impairment, there are some established “cut-off” concentration levels (beyond which impairment is likely) and you should include these in your drugs and alcohol policy.

Drug and alcohol tests need to be done promptly, so you can capture the levels of intoxicants present before the body processes them.

What about an employee’s right to privacy?

Employees have the right to do what they want in their private lives, but they must be “ready, willing, and able to work”. If their personal choices impact their ability to work or create a health and safety risk (to themselves or others), employers are duty-bound to manage their behaviour under health and safety regulations.

There are privacy obligations, e.g. under the Privacy Act, that you will need to consider if you are going to introduce drug testing. The Privacy Commissioner states that the “more invasive the type of drug testing, the stronger the justifications will need to be for its use.” For example, it is easier to justify drug testing for employees working in safety-sensitive roles than it is for office workers.

What is “reasonable cause” for testing?

Reasonable cause is all about establishing the reasons that you suspect an employee is under the influence or impaired by drugs or alcohol at work. This could be based on their appearance (e.g. dilated pupils, smell of alcohol, bloodshot eyes) or behaviour (e.g. slurred speech, poor motor skills).

To establish reasonable cause, we recommend observing the individual and taking notes. If you have good reason to believe they pose a safety risk to themselves or others, approach them with your concerns and explain why you have reasonable cause to suspect drug or alcohol use. Outline the company’s policy and whether this requires them to be tested.

How to introduce drug and alcohol testing at work

If you want to introduce workplace drug and alcohol testing, and you don’t currently do it, health and safety law requires you to consult with your employees before doing so. We recommend following these steps:

• Draft a drug and alcohol policy that outlines the process around it, e.g. how often it will happen, who sees the test results and what happens with the information, consequences of refusing to undergo testing or returning a non-negative result.
• Explain to your employees why you want to introduce testing, and who will be affected in your organisation (this can be in writing, via email or a memo, or it can be in person, at an all-hands or toolbox meeting).
• Give the draft policy to all employees and ask for their feedback (allow 2-5 business days).
• Consider their feedback, answer questions etc.
• Make a final decision.

As well as confirming the policy and sharing it with your workforce, you should include details of the testing programme in your employment agreements and make sure the details match those in the policy.

MyHR tip: Use a third-party provider for testing

If you are going to introduce drug and alcohol testing at work, it’s best to engage professional third-party providers. This ensures the process is reliable and fair (no potential biases or conflict of interest), follows recognised standards, e.g. AS/NZS standards, and results are handled confidentially. It’s also typically more cost-effective than running your own testing programme.

Quick-reference drug and alcohol testing checklist

Typically, if you have reasonable cause to believe an employee is under the influence or impaired by alcohol or drugs at work, this is the process you should follow.

Note: if an employee returns a non-negative test result at work (e.g. in random or post-incident testing), you would begin the process from step #3.

1. Meet with the person, and explain why you think they’re under the influence of alcohol or drugs.
2. Arrange for a test to be completed - either onsite, or at a testing provider's premises.
3. If the test shows a non-negative result, it will be sent to the lab for further testing.
4. Propose suspending the employee from work (on pay) while the test is being processed, to make sure that you’re keeping them (and others) safe at work.
5. Listen to their feedback, and make a decision.
6. Make sure they have safe transport home. This could involve calling a taxi, having a member of their household come and collect them, or dropping them home yourself.
7. Once you have the full results of the test back from the laboratory, review your drug and alcohol policy and decide how to proceed. You might consider disciplinary action, up to and including termination of employment, if appropriate.

When dealing with any drug and alcohol testing situation (and any consequences), be sure to carefully follow any procedure set out in your drug and alcohol policy. Failure to do so could result in successful personal grievance claims.

Drug and alcohol in the workplace FAQs

What evidence should supervisors be trained to recognise and document to support a decision that a worker is impaired and unfit for duty?

• Behaviour - poor motor skills, balance, inability to perform basic tasks, behaviour that’s out of character, excessive drowsiness or fatigue, slurring (or speaking really fast), easily distracted.
• Appearance - blood-shot eyes, dilated pupils, smelling of alcohol or other substances, appears unusually relaxed or agitated, dishevelled.

Do we need to randomly test employees if we suspect only one person is using illegal substances?

We don’t recommend submitting your whole team to random testing because you think one person is impaired or intoxicated. If you are challenged, you will have a hard time proving the random testing regime was based on reasonable grounds.

If you do suspect an employee of using illegal substances or coming to work intoxicated, you should take notes and present your concerns to them, and consider testing for reasonable cause.

What are the common testing methods?

Urine and saliva testing is most common in the workplace, however, there are also blood and breath tests. Regardless of method, the testing process is typically the same:

• A sample is collected.
• Onsite check is done and a “negative” or “non-negative” result is obtained.
• If non-negative, the sample is sent to the lab for additional testing.
• A lab report will be generated and sent to the employer. The report will list the substances present in the sample and the amounts present.

Who pays for the test?

There is no specific law mandating who pays for drug and alcohol testing in the workplace, however, the employer typically covers the cost of tests.

Who should have access to the test results?

Only “appropriate” people should have access to the results. Typically, this means either people who:

• Have access to the employee's employment records, e.g. direct manager, the manager's manager, any HR staff, or
• Have responsibility for health and safety at work, e.g. H&S manager.

After a staff party, when does the liability for the employer stop?

This is something of a grey area. In most cases, the employer's liability stops once a work event ends and people are transported home (or agree to make their own way).

However, if there is an after-party incident that is related to the workplace or work relationships (e.g. two employees get into a fight because of a disagreement about work), it could be argued the employer has an obligation to respond (once everyone's back at work).

If we already have a drug and alcohol policy in place, but wish to introduce a small change do we still need to consult staff?

It depends on the scale of the change. If it's a change in your testing provider, then you wouldn’t need to consult with workers. If it's adding random testing to your existing testing regime, then yes. Any change that requires additional "invasion" into employee’s privacy or significantly alters workplace policy/procedure should be consulted on.

What about prescription medication (including cannabis)?

If your worker is taking medication that may affect them at work (drowsiness, fatigue, increased anxiety etc) they are required to tell you. Not disclosing it could constitute serious misconduct as it is a major breach of trust and the consequences could be serious, depending on the work the person does.

If an employee takes a prescribed medicine that affects their ability to be "ready, willing, and able to work" or to be safe at work, first explore making reasonable accommodations, where practical. If you can’t, discuss alternative duties or an alternative role in the business. Only once you have explored all alternatives, can you propose terminating their employment.

The use of medicinal cannabis is no different than other medications, however, be aware that different compounds in cannabis have different effects: CBD is non-intoxicating (and undetectable in a drug test) whereas THC is intoxicating (and will show up in a test).