By finding in favour of Air New Zealand, the Employment Court recognised the reluctance of employees to undergo testing but emphasized the duty of employers under the Health and Safety in Employment Act.  Random testing will be allowed where employees are working in safety sensitive areas or where there may be sound indications that drugs have been taken.

No one would dispute that employees who work under the influence of drugs or alcohol will run a higher risk of causing an accident or injury to themselves or colleagues.  Or that they are likely to be less productive, have higher levels of absenteeism, lower levels of concentration, are more likely to take risks and make errors in judgment.    

Research indicates that up to 10% of the population is alcohol or drug dependent and 70% of drug abusers are in employment.  The ILO estimates that up to 25% of work place injuries involve employees under the influence of drugs or alcohol.

Other potential areas of loss include increased overtime pay, sick leave, increased tension between employees, lower staff retention rates, higher ACC claims, grievance procedures, legal actions and security issues. 

The Health and Safety in Employment Act places a responsibility on employers to “take all practicable steps” to ensure a safe environment for all staff and visitors in the work environment.  Minimising workplace hazards includes protecting employees from themselves and others, drugs and alcohol is considered to be one of these hazards. 

Workplace drug and alcohol testing is legal as long as it follows certain procedures and complies with a number of obligations.  Testing can only be carried out if it is for the express purpose of protecting from harm in the workplace, does not discriminate, consent is obtained, the collection is discreet and private and the accuracy and validity can be assured.  In addition the company must provide an explanation of the process and possible action that will occur if tests are found to be positive, including any disciplinary procedures.

Many companies in New Zealand have successfully implemented drug and alcohol testing programmes.  Testing can and is used at a number of levels.  An employer may choose to test job applicants, existing employees on a random basis or after an incident or accident.  The programme may cover all applicants or just those that apply for roles that have particular hazards attached.Similarly with employees, an employer could choose to test everyone or only those working in safety sensitive areas that could present a hazard to the health and safety of employees, co-workers and the public.  Areas such as forestry, aviation or any area where staff handle dangerous goods or equipment.

There has been some dispute over the validity and accuracy of tests.  In effect the risk of error is minimal and can if necessary be offset by a second test.  Alcohol is most commonly tested for using a breath test such as used by the police force; other drugs are tested through taking of a urine sample.  Companies such as ERS can supply both testing and training services and a comprehensive selection of information and advice about implementing drug and alcohol testing services. 

Successful policies have been written in consultation with employees and include clear explanations of the aims, expectation of behaviour and commitment and both inform and educate.  They should provide information on counseling and assistance programmes available and who an employee can approach for help and guidance.  Specific details of the testing frequency, type, accuracy and procedure should also be outlined. 

A workplace policy should be in writing and clearly communicated to all staff and take into account all applicable human rights and privacy legislation.  It should emphasise workplace safety and be integrated with other health and safety policies.  The employee and employer responsibilities should be clearly identified.  Don’t forget to include rules for the use of alcohol during workplace parties, conferences and other work social events whether on or off premise. 

Staff training is vital in giving staff personal responsibility and ensuring that managers who have to implement testing fully understand the processes and procedures involved. 

Draft the policy and guidelines for implementation, evaluation and monitoring and send a copy to employees for comment.  Allow ample time for consultation and consideration, giving a deadline for responses and comments.  Set up teams to implement the policy within an agreed timeframe and train supervisors. Put in place support services such as education and counselling and begin monitoring procedures.  Make sure that job descriptions and employment agreements include references to the policy and add details to any induction programme. 

Employee assistance programmes are provided by various organisations.  The programmes handle a company’s drug and alcohol policy as well as educating employees on substance abuse and its effects on performance.  The programme should teach staff how to recognise the warning signs of drug or alcohol dependency and provide advice on testing processes. 

The Courts decision applies only to the circumstances of Air NZ and its workers and more legislation will be needed that will specify the legal rights and responsibilities of employees and employers in other industries.

However following the case we can say that random tests are legal for employees in safety-sensitive areas but not for other workers.  Employers will be allowed to test any staff member suspected of taking drugs or involved in an accident or incident in the workplace.  Tests will also be allowed as part of a recruitment process prior to employment.