Zero Tolerance Approaches Drug & Alcohol in the Workplace
Employers often say they operate a ‘zero tolerance approach’ to drugs and alcohol in the workplace. The short point here is that if an employee returns a non-negative test, then they face termination of their employment.
While this approach is logical from a business perspective - unfortunately issues associated with employment disputes in this area can be legally complex and very risky.
Case Law Example
A recent example of the difficulties employers can face in this area is illustrated in Hadfield v Atlas Concrete Limited [2023] NZERA 470.
Mr Hadfield was employed as a concrete truck drive for Atlas Concrete, until he was dismissed following a positive test for cannabis after a random drug test. Mr Hadfield admitted to smoking cannabis during the weekend prior to the random drug test, which occurred on the following Monday.
Mr Hadfield claimed that Atlas Concrete incorrectly concluded that he was under the influence of drugs because he was not impaired while attending work and that its ‘zero tolerance’ approach was not justified given the circumstances.
The Employment Relations Authority determined that Atlas Concrete had failed in several areas, including:
- A definition in an employment agreement of behaviour that could be serious misconduct warranting dismissal does not make it so. Such labelling does not free an employer from meeting the statutory test of justification;
- It did not follow its own policy in terms of advising Mr Hadfield that he had the right to consult a representative at the time of the test, nor did it offer him rehabilitation;
- It did not provide him with relevant documents and information prior to the formal meeting it had with him to discuss matters, nor did it specify whether the allegation was ‘misconduct’, or ‘serious misconduct’, or advise him of his right to bring a representative;
- It did not consider alternatives to dismissal in accordance with its own policy and closed its mind on those due to its ‘zero tolerance’ approach;
- It did not genuinely consider Mr Hadfield’s explanation about his personal experience prior to the non-negative test;
- While a fair and reasonable employer could have concluded that the return of a non-negative test above the cut-off level constituted attending work under the influence of drugs – it concluded that Mr Hadfield’s dismissal was not substantively unjustified.
The Employment Relations Authority held that Mr Hadfield’s dismissal was not procedurally justified. Mr Hadfield was awarded $7,310.12 in lost renumeration and $16,000.00 in injury to feelings compensation, along with legal costs.
Practical Tips
Some key takeaways for employers based this case are:
- Stay away from statements about impairment – testing cannot verify whether an individual is impaired at the time of testing. Testing can only verify whether an individual is above the applicable cut-off levels in terms of breath testing, saliva testing and urine testing, etc. There is no international standard to measure impairment.
- Have a clear, balanced and up to date Drug & Alcohol Policy in place before conducting workplace testing on employees. EAL has a template Drug & Alcohol Policy available on our website.
- Follow your policy and contractual requirements, including any specific obligations contained under the terms of an employee’s employment agreement. Check these documents very carefully before you do anything.
- Ensure usual formalities are complied with in terms of facilitating any formal meetings with the employee, e.g. they are advised of their legal rights, the allegations against them, the potential outcomes they face, provided with access to all relevant information, etc. EAL has a comprehensive eBook on ‘Discipline & Dismissal Management’, along with template letters to set up formal meetings where formal warnings, or dismissals are a possibility.
- Be very cautious around enforcing a ‘zero tolerance approach’. Each case is fact specific and an employer has various obligations and considerations that it must take into account prior to any dismissal, e.g. a formal warning and/or rehabilitation process may be necessary for an employee’s first offence – rather than dismissal for serious misconduct.
- Understand any particular areas of legal risk exposure, plan for contingencies and be prepared to defend associated decisions.
If in doubt, then seek professional advice from EAL via 0800 15 8000 at the earliest opportunity.