If you didn’t feel just a bit disappointed when Valarie Adams missed out on confirming her world dominance and having the Olympic Gold Medal conferred on her in London then sorry, but you can’t be human! Let’s face it, the only way the Belarus shot putter could beat Val was to cheat!
Since 1992 employers around New Zealand have worked to ensure they meet the requirements of the Health and Safety in Employment Act to take all practicable steps to avoid employees harming themselves at work. In the same vein as the IOC catch drug cheats in sport, one practicable step employers have taken has been to introduce a drug testing regime in the workplace.
Much debate has ensued over the last decade over which method of testing should be used in the employment environment, urine testing or saliva testing. Some quarters prefer saliva testing because it is less invasive than urine testing.
In a recent Employment Court decision this issue was addressed by reference to a full bench decision of Fair Work Australia (our Court’s equivalent). In the Employment Court decision two employees were dismissed after returning two positive drug tests undertaken using urine testing. The employer had promulgated a written policy addressing drug testing and rehabilitation which both employees were aware of. In both cases the second test indicated significantly less THC-Acid than the first test.
Unfortunately for the employer, it failed to adhere to its own policy and therefore the dismissals were unjustified and remedies were awarded to the two employees. In his findings the Judge commented that in terms of the law as it stands in New Zealand, the scientific advances made in testing procedures have moved on considerably since other New Zealand decisions in 2004 and 2005 relating to drug testing.
The Judge stated that in recognising the legitimate right of employers to try and eliminate the risk that employees might come to work impaired by drugs or alcohol, an employer cannot dictate what drugs or alcohol an employee may take in their own time.
The Judge then relied on a conclusion by the full bench of Fair Work Australia that THC-Acid levels do not indicate impairment or when and how much cannabis is used. The difficulty with the urine testing method is that it may show a positive result even though it is several days since the person has smoked the substance. This means that a person may be found to have breached a policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely. In other words, the urine test may show a propensity for impairment but not actual impairment.
In the Australian case it was held that where oral fluid testing was readily available, the introduction of urine testing by the company would be unjust and unreasonable. The case was concerned with an employer implementing a new drug testing regime.
Given the Employment Court’s reliance on the Australian case, drug and alcohol policies need to ensure any issues arising from urine versus oral testing can survive scrutiny by either the Employment Relations Authority or the Employment Court and that the policy is clear about its purpose and is clear as to what constitutes a breach of the policy.