Fair fix for drug issue

Employers can test for drugs at work. Photo / NZ Herald

PROBLEM

I employ three people in my business and one of them is a heavy marijuana smoker. A staff member discovered the drug among his property and he shows the signs of being stoned while at work. His job involves operating some light machinery. What am I within my rights to do?

SOLUTION

Thomas Biss, director of Henderson Reeves Connell Rishworth, says drugs in the workplace are a complicated issue because it is hard to prove drug use without testing.

"Employers may impose a reasonable drug-testing policy - but what is reasonable will depend on the type of work," Biss said.

"Testing airline pilots or truck drivers has obvious safety implications, as opposed to office workers."

In cases where machinery was operated, there would be safety issues and it would be reasonable to have a drug-testing programme in place. "But not all testing programmes are fair. If an employee is found to be at work under the influence of drugs then, depending on the terms of employment, that is likely to be serious misconduct and termination of employment might arise."

But he said there were always individual circumstances to consider and people should seek legal advice before implementing testing.

Helen Wendelborn, of Turner Hopkins, said the employer had to balance his health and safety obligations to staff and customers with the human rights of the employee.

"Employers in industries where machinery is operated, and where there are significant health and safety concerns arising from the operation of that machinery, should have a robust health and safety policy, including a policy on drug-testing.

"That policy should be brought to the attention of every new employee and a copy should be readily available, perhaps on the staffroom notice board."

She recommended the policy be developed in conjunction with employees.

The issue became more difficult if no policy was in place. Wendelborn said if the worker showed signs of impairment at work that might involve safety issues for himself or others, the employer should take action.

The first step would be to talk to the worker away from other staff members. The employer should ask whether they consented to a drug test.

If they did not, or denied they were impaired but continued to show signs of impairment and had a suspension clause in their contract, the employer could consider suspending them pending a formal meeting.

The employer should try to work with the employee to resolve the issue and consider a range of remedies depending on the results of any testing, the work record and attitude of the employee, the seriousness of the matter and the health and safety concerns.

Department of Labour mediation might also be an option.