Paper to National BAG Guidelines for Drug and Alcohol Testing in the Workplace 9 May 2013

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1 Paper to National BAG Guidelines for Drug and Alcohol Testing in the Workplace 9 May 2013 Thank you for giving us an opportunity to draft guidelines on the above. We have taken the suggestion raised at NBAG that whilst looking for national policy, guidelines might be a better title, or at least a start that might enable further population of issues that arise. The following are preliminary thoughts around this issue. We do not claim to have all the answers, or even all the questions, however trust the following will further stimulate thought, maybe debate, and enable us to collectively reach a sector wide conclusion. First we doubt there would (could) be any objection to policy that simply requires employees not to be impaired while at work. However taking that forward to a testing policy requires far more consideration on a number of levels. Having researched the matter, I (personally) remain unconvinced that a drug and alcohol testing policy is actually needed. My core reasoning is as follows: 1. There is a lack of evidence to support the view that testing is necessary i.e. evidence that we have sufficient an issue to warrant this. 2. There is scant correlation between performance / impairment and drug levels that can be tested for. 3. Timing (baselines, timing with actual evidenced impairment etc.) and establishing grounds for testing is problematic. 4. The unintended consequences that can arise are considerable e.g. what of the positive result that arises from private use or indirect (e.g. passive smokers) exposure? Impact on staff morale and legal consequences. 5. Where someone is impaired, we already have processes in place which can rightly include a testing regime which is appropriate and justified in individual circumstances. A solution looking for a problem? Can drug testing policies be seriously proposed in good faith unless they are designed to solve a problem? The problem should one be identified also has to be valid, e.g. such could not be used to show that alcohol or drugs were used, sold, transferred or possessed on DHB property. We pose a series of questions to inform considerations. What is the actual problem we are trying to address with drug testing? What are we intending to do with information gained from drug testing? Where is the evidence that staff are exposing themselves or others to unacceptable risk as a result of drug or alcohol use? What is unacceptable risk? Can the testing proposed show that the employee was impaired or indeed whether they were under any material kind of influence, and that this correlates with their acting in a way so as to cause unacceptable risk at the time of the test? Is a positive result at some time distant to the behaviour be relied upon as a causative linkage? If concerning behaviour comes first, would not normal process enable subsequent testing as part of an investigatory process (the distinction between random and behaviour correlated testing)?

2 Specific Problems What is unacceptable risk? Are we suggesting zero tolerance to any drug or alcohol level (regardless of impairment), or is there a grey area here; and if the latter what is it? Which drugs? Alcohol is legal, so is synthetic cannabis (as at date of writing), but marijuana and cocaine are not. Are we simply testing for drugs we can test for, and if so, where is the correlation to impairment? Depending on the drug, drug testing provides a variable amount of information. At one end of the spectrum alcohol levels in the blood are relatively well correlated with timing of ingestion and subsequent performance. Hence the ability to decree that at 80 milligrams alcohol concentration / l00 millilitres of blood, we cannot drive safely. That this is the correct level is open to debate however, evidenced by other jurisdictions having different but still acceptable (to them) levels. Legislation has been the avenue to settle this debate. All testing can do is indicate the presence of alcohol or a drug metabolite in the sample and concentrations. In the case of marijuana, metabolites can remain detectable in the blood for some time after direct or indirect exposure. There is however no reliable correlation between usage and performance. In order to convert the data into a useful estimation of the degree of impairment at the time of the test (which would be the assumed goal), then a lot more information would be needed. As drugs can affect people differently, we might require personalised reference values to take into account factors such as basic vital stats and any tolerance to the drug which may have developed. If drug levels are detected but do not relate to impairment at work, we suggest this would not be the proper subject of an employer s concern. Whether potentially criminal or not, workplace policy must relate to the workplace. It is not the employer s role to become the police. As an aside we note that even with greater legal protection the Police are not venturing into this territory! In relation to drugged driving the Police are notably taking a predominantly educational approach, as a result of similar issues. In reply to the following FAQ in their current communication materials: Why aren't we doing saliva testing as in some Australian states? The drugged driving provisions in the Land Transport Act 1998 are concerned with impairment and a saliva test cannot show impairment, only the presence of a drug. Also, the saliva test technology is not yet reliable enough for use in criminal prosecutions. Flaws in process It is appropriate to start this section with some guidance from our Courts. Goddard CJ wrote in Harrison & Ors v Tuckers Wool Processors Limited [1998] 3 ERNZ 418:... it is questionable whether employers are the appropriate authorities or organisations for conducting such tests. In other environments where alcohol and drug testing is authorised there are ordinarily regimes or protocols to ensure the integrity of the process and the fairness of its application. It is a severe assault to the dignity and integrity of the individuality of employees for their employers to impose such strictures upon them. I venture to suggest that few employees would willingly agree to such a provision as reasonable. I am aware that other employers have attempted to insert provisions along these lines in their employment contracts. No doubt some have been agreed to in return for incentives seen as adequate. They would need to be generous to overcome the natural reaction of employees to find such initiatives to be unacceptably disrespectful when dealing with human beings. Arguably, the employment contract is no place for such a provision, nor is the employer an apt person to

3 decide who should and who should not be subjected to testing, whether random or otherwise, or to conduct such tests. If an employer thinks, on reasonable grounds, that an employee has come to work drunk or under the influence of drugs, the employer is perfectly at liberty to send the employee home. The whole topic of the testing of employees for alcohol and drugs is more fitting to be the subject of legislation than of an employment contract. The Employment Relations Services advice is: If an employer suspects that an employee is using drugs, then as a first step it is advisable for both parties to try and resolve the issue by talking about the problem. If this is not successful either party may choose to seek mediation assistance through the Department of Labour. We are not aware of any provision that obliges employees to undergo testing in (health) collective agreements. Staff may properly refuse to undergo testing and will not be at risk of disciplinary action for wilful disobedience because they are not contractually bound to do so; refusing an unlawful and unreasonable request on their part would be quite proper. The onus of proof (that testing was reasonable) would still rest with the employer and require at the very least a proper investigation, which we suspect would render the need for a test, negligible (see below). All employment agreements have in them an implied term of trust and confidence. Subjecting an employee to drug testing is inherently distrustful and is a firm vote of non-confidence. Such a breach of contract could give rise to damages, as well as a negative effect on staff morale. Would a positive test justify termination without a lot more additional information? We do not believe it normally would, additional information and investigation would be required; for instance, what of the indirect exposure defence? It would therefore be appropriate to first put a concern that alcohol or drugs may be involved to the employee, so that they have the opportunity to explain why their actions, appearance and / or conduct may have resulted from innocent causes rather than through over use of drugs or alcohol. We suspect the gathering of additional information would largely render a positive test result unnecessary. This brings us to what we believe to be a common sense approach. Policies requiring employees to present to work and perform whilst at work in a fit and proper manner (and not be impaired) would be normal. If someone is impaired, that currently becomes noticeable for a range of reasons, but not as a result of drug testing. The impairment itself is grounds for investigation and subsequent performance management through to disciplinary process. In this context, giving the employee the opportunity to explain, extenuating or contributing factors, alternative explanations, incorrect allegations etc. are all available to be considered. We believe targeted drug testing as part of an agreed performance management process should that be indicated is an avenue open to us. In this context the issues raised above would be resolved as part of the performance improvement plan. In writing this, our team developed a checklist which aided in assessing various scenarios we dreamed up. We have included that for your information and should you wish to run some scenarios of your own.

4 Checklist for drug testing policies Issue 1. Can you demonstrate that there is a problem which needs solving? 2. If you have policies in place that require employees to perform competently, can you demonstrate how the proposed new policy adds to your ability to deal with a drug related performance issue in a practical sense? 3. Can you demonstrate what the success indicators of your policy are (and what baseline measurements would you need to confirm success)? 4. Does the proposed testing show that the employee is: a. impaired at the time of the test; b. possessing, using, selling or transferring drugs on employer time and property; or c. Does it merely show the presence of a known drug metabolite? 5. Are the proposed criteria for a positive result set at the minimum level which metabolites can be detected with some reliability in a laboratory, or are they set at a level which directly correlates with a level of impairment? 6. Before considering performing a test, does the draft policy require the employer to put the concern to the employee that they may be impaired by a drug, so that they have the opportunity to explain themselves? 7. Is the testing procedure covered under the HDC Code of Rights, and if so does the policy comply with these? 8. Does the policy contain any duress or undue pressure on employees to submit to testing? (E.g. requiring them to sign an informed consent form which ends I understand that my refusal to take the test or a positive test may result in my termination ). 9. Does the policy purport to require a person to sign any document or give consent at the time they are suspected of being impaired? 10. Have you considered whether addiction / dependency may be a health issue and a prohibited form of discrimination under the Human Rights Act 1993?

5 11. Does the policy anticipate a rehabilitative remedy arising from a positive test result, or disciplinary action? 12. Does the policy comply with the Privacy Act 1993? 13. Does the employee s Employment Agreement allow for / require drug testing? 14. Is the proposed testing consistent with the obligation to maintain trust and confidence between employer and employee? Or put another way, can you demonstrate that the proposed policy is anything other than a vote of distrust and non-confidence in the employee? 15. Would talking about a perceived performance issue be more consistent with the principles of trust, confidence and good faith dealing? 16. Can you show us your analysis regarding how the proposed policy will affect staff morale? 17. Do the police perform similar testing to what you propose, on members of the public? And if not have you considered their reasons as to why they don t? 18. Do you have legislation to protect you in the event that you get the process wrong (as for example the police do?). 19. Does the policy provide for regular review by way of keeping up with scientific and legal developments?