Armstrong’s downfall a reminder about workplace drug testing
The Lance Armstrong fiasco may seem a world away from the New Zealand employment environment, but it does provide a timely reminder to employers to ensure that they have effective drug and alcohol policies in place.
Employment lawyers Jennifer Mills and Christie Hall outline lessons for employers dealing with alcohol and drug problems in the workplace.
Lance Armstrong’s world of “win at all costs”, performance drugs, blood transfusions and perjury has captured global attention of late.
His “full and frank” confession to Oprah painted the picture of an arrogant and complex man who showed little remorse and was reluctant to give up his place in the world media gaze.
However, it must also be remembered that Lance Armstrong has shown tremendous strength in recovering from life threatening cancer and, in that sphere, through his name and profile, has contributed enormously to cancer research and support.
Equally, for employees facing workplace alcohol and drug problems, the issues involved are very rarely black and white. There are usually good and bad aspects to the employee’s performance, combined with multiple and complex external issues which have given rise to the problem.
Unfortunately for employers, unlike professional cyclists, employee drug use does not tend to be performance enhancing. Employees who abuse alcohol and drugs, whatever the reasoning behind it, can pose significant problems for both their employer and colleagues, including diminished productivity and job performance, increased accidents, absenteeism and even violence.
Furthermore, a failure to deal appropriately with such employees could amount to a breach of the employer’s health and safety duties.
“My cocktail, so to speak, was only EPO, but not a lot, transfusions and testosterone” - Lance Armstrong
We are unlikely to see transfusions and testosterone in the typical New Zealand workplace, with alcohol and marijuana being the key substances of choice. However, while professional sportspeople are liable to be drug tested at any time, if an employer wishes to have the ability to conduct random drug testing, this is more difficult.
Employers may implement drug and alcohol testing in any workplace where there is “reasonable cause” to suspect that a particular employee is under the influence.
However, random drug testing may only be implemented where employees work in “safety sensitive” areas. Workplaces will generally be found to be safety sensitive where there is an increased risk of harm compared to other conditions in which people work. Such risks may apply to members of the public and/or members of the workplace concerned.
If an employer wishes to test its employees for drug and/or alcohol use, this must be expressly provided for in the relevant drug and alcohol policy or in the employee’s employment agreement. In implementing drug and alcohol testing, it is important that employers adhere to their own policies. Therefore, when random drug testing is undertaken, employers must ensure that the drug testing is in fact “random” and that specific individuals are not targeted.
Likewise, where drug testing with cause is carried out, there must be reasonable cause to believe that the employee may be under the influence of drugs or alcohol. Workplace incidents may provide reasonable cause in some situations, for example, in the aftermath of an accident.
However, it has been found that an employee tripping over in the workplace is not sufficient evidence to justify drug testing. Case law has also established that behaviour such as “yelling, swearing and extremely loud music” in a factory is not reasonable cause to require all factory staff to undertake drug testing. The “reasonable cause” must be specific to an individual employee, rather than being a general concern applying to all employees.
In any forum where drug testing occurs, it is inevitable that some people will attempt to avoid being tested.
Employers can be comforted by the fact that there have been cases where employees have been found to have been justifiably dismissed after refusing to undergo legitimate testing. In fact, a refusal to undergo a drug test may be worse than returning a positive result.
The duty of good faith applies to both employees and employers, and requires that both parties be responsive, communicative, and not mislead or deceive each other. Where the employer can demonstrate that it was reasonable to require the employee to undergo a drug test, the employee’s refusal to do so can amount to serious misconduct. However, this will again depend on the terms of the employer’s policy or the employee’s employment agreement. Once again, this highlights the need to have robust policies in place.
“I view this situation as one big lie that I repeated a lot of times”
As recent events in the cycling arena have shown, drug testing methods are not infallible. Therefore, employers need to ensure that they have stringent processes in place. In particular, the collection process should not allow the employee a chance to adulterate or substitute the sample given. T
here are two key methods of testing available to employees, being saliva and urine testing. There has been some comment from courts in both New Zealand and Australia suggesting that saliva testing is the better method as it is less intrusive. However, it can be flawed in delivering false negatives. Saliva testing has not yet been developed to a point where it will detect drugs to the same level or accuracy as urine and beyond three to four hours after use. Therefore, at present, urine testing still appears to be the most effective testing method.
Rather than trying to conduct drug tests themselves, it is prudent for employers to use an independent body to do so. The use of a professional drug testing provider decreases the risks of contamination and flawed results. There are a number of providers available to employers in New Zealand. These providers are well aware of the correct drug testing procedures and are able to come direct to the workplace to conduct testing on site.
The use of a professional testing body will also mean that the tests and process adopted by the employer are more likely to withstand scrutiny in the event of an unjustified dismissal claim.
“Everyone that gets caught is bummed out they got caught”
Where an employee does test positive for drugs or alcohol, this does not give the employer an automatic right to dismiss. A fair and reasonable process must still be followed.
In particular, the employer must again ensure that the relevant policies are adhered to. For example, a dismissal was found to be unjustified where the relevant policy stipulated that employees who tested positive for drugs were to be suspended and an employee was instead allowed to carry on working for a period. Furthermore, it was held to be unjustified to dismiss an employee for a failure to adhere to a rehabilitation programme where the relevant policy provided that employees could choose to undertake the rehabilitation programme.
Another dismissal was found to be unjustified on procedural grounds when the employer did not tell him that a colleague had admitted that both of them had been using drugs. Despite the fact that the employee was found to have been using illegal drugs during work hours, the failure to provide an opportunity to respond to those allegations prior to dismissal proved fatal.
Where employers decide to dismiss drug taking employees, they must be vigilant in following both their own internal policies as well as the general procedure applying to all conduct dismissals to ensure that the dismissal will be upheld as reasonable.
“I deserve to be punished. Not sure I deserve a death penalty”
Where an employer considers that the circumstances warrant providing an employee who has tested positive with a second chance, there are a number of options available.
For example, the employee may agree to undertake a rehabilitation programme or counselling. Where this occurs, it is important that supports are in place to assist the employee. The employer must also make a decision as to whether it is appropriate for the employee to remain at work during their rehabilitation or whether they should be put on leave for that period.
When the employee does return to the workplace, it is important to monitor their behaviour to ensure that the safety of other employees is not compromised by their return.
Most employers also draw a line in their policies between an employee who discloses a drug or alcohol problem to the employer voluntarily and asks for support during a period of rehabilitation and an employee who confesses to a drug and alcohol problem following a positive test.
The extent of the alcohol and drug policy that an employer has in place and the type of testing that the employer wishes to conduct, will depend largely on the type of industry that the employer is involved in and the propensity of the workforce to have issues with alcohol and drugs which affect their employment duties.
However, alcohol and drug abuse can affect any employee and it is an issue which is very difficult to deal with without the appropriate policies or contractual terms in place. If you have drug and alcohol issues in your workplace, then they will come to a head eventually (even Lance Armstrong got caught in the end), so addressing these issues in advance should be a priority for all employers.
Jennifer Mills is a partner and Christie Hall is a senior associate at Minter Ellison Rudd Watts.