Is Your Drug & Alcohol Policy On Point?

The method of drug testing is an important issue for many safety-sensitive workplaces. Oral swab testing has been criticised in the Employment Court for returning more false positives or false negatives in comparison to urine testing as they do not as reliably detect the presence of benzodiazepines.

In the recent decision in Vulcan Steel Limited v Manufacturing and Construction Workers Union [2021] NZERA 2, the Authority had to decide whether the employer, Vulcan Steel Limited (Vulcan) was entitled, under the drug testing procedure set out in its collective employment agreement (Policy), to decide whether its employees will take either an urine or oral swab test. Vulcan’s preference was for urine testing.

Conversely, the employee’s union’s position was that Vulcan breached the Policy by only offering urine testing and not oral fluid swab testing to the employees.

The Authority’s decision turned on its interpretation of the Policy. The Authority considered the plain meaning of the words used in the Policy and also the wider context. Consideration of the wider context was necessary as nothing in the Policy expressly stated who had the right to choose the testing method. However, the Policy did refer to the two methods of testing and stated that “prior to undergoing a test, a test consent form will be signed by the employee consenting to the relevant method(s) of testing”.

In considering the Policy, the Authority noted it expressly required the employee’s consent to the “relevant method(s) of testing”. As there were two methods of testing referred to in the Policy, the Authority interpreted the Policy as stating that the employee was consenting to those two methods generally: not allowing Vulcan to select between the two. Otherwise, the Authority said, the Policy would have only said “… a test consent form will be signed by the employee.”

Vulcan cited Fair Work Commission findings supporting its preference for urine testing procedures and why it, and not its employees, should have the right to determine the testing method. However, the Authority, while acknowledging the limitations of oral testing, could not overlook the fact that oral swab testing produces still provide sufficient information when determining whether an employee is working under the influence.

The Authority concluded that, under the Policy, Vulcan’s employees had a right to choose how to be tested. This is not a surprising result given the importance of informed consent for what is considered an intrusive procedure.

Vulcan’s policy highlights the importance of drafting clear policies: if the clause is ambiguous, any textual ambiguity may be interpreted in a way the person drafting the Policy may not have intended.

Employers who have concerns about the suitability of their testing policy can get in touch with the Employment team at Saunders Robinson Brown. We can assess your policies and propose any changes, as necessary.

DISCLAIMER

The above information is of a general nature only. The information in this article does in no way constitute legal advice and all readers should contact a law firm for advice relating to your specific circumstances.