Employment Law

Drugs & work

Drugs and work usually don’t go well together. In some jobs, being impaired by alcohol or any other drug might put your or other people’s life at risk. Pilots, bus drivers, but also complex machine operators come readily to mind. It is therefore no surprise that some employers have introduced drug-testing policies allowing for drug testing of employees in work areas where there is simply no room for error.

That an employer is allowed to introduce such policies, is common ground here and in Australia. Health and Safety laws in both countries require the employer to take all practicable steps to provide and maintain a safe workplace, which includes random drug testing. Two recent NZ cases have confirmed this approach. Although in both cases the dismissals were held unjustifiable, this was not because the employer was not allowed to conduct drug testing, rather that they did not follow due process and breached their own policies in doing so:


Fair Works Australia recently went even further and held a dismissal unjustifiable because the employer used a urine-test to establish drug use, instead of an oral-fluid (mouth-swab) test. It appears that urine-tests can detect drug use which may be days old, whereas oral-fluid test only detects most recent drug use, i.e. drug use which affects the worker on the day. So, according to FWA, an employee may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely, which means the use of urine testing is ”unjust and unreasonable”.


One cant help but wonder whether this is not a bit too simplistic. Surely, most employers would not have an issue with their employees having a drink on the weekend or even coming to work on Monday still being a bit hung over. But when it comes to more serious, regular drug use,  some employers may be entitled or even have to know about it.  Because there are certain jobs out there for which regular drug use, irrespective whether you are technical fit for work Monday-Friday, is just incompatible. Take air traffic controllers. Or airline pilots. Would you feel comfortable knowing the guy in the tower had a few joints with his mates last night when you take off in heavy fog? And if the drug use habits of that employee become public knowledge (facebook!), what about the airport operators reputation? You can see where I am going with this.

On the other hand, of course there is nothing wrong with the forklift driver having a smoke Saturday night. To dismiss him for breaching the no-drugs policy when his test result comes back positive on Monday is out of proportion. But to just declare one drug test better because the other may infringe on the employees privacy rights, is a bit too easy.

As always, a balanced, even handed, approach is required.

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