September 2017

As an employer, you are required by law to ensure you take all reasonable steps to ensure the safety of your employees and all those who interact with your workplace or products and services.

One of the ways businesses can do this is to have a robust drug and alcohol policy which reflects the laws that cover drug and alcohol testing in the workplace including the Health and Safety at Work Act 2015, the Privacy Act 1993, and the Human Rights Act 1993. For some industries this includes a testing regime, often using an external agency.

The recent changes by Associate Health Minister Peter Dunne, which have loosened the requirements for patients to obtain what is commonly called medical marijuana – cannabidiol (CBD) products – highlights issues around prescription medications for employers. With doctors now able to prescribe these, it has implications for disclosure as well as the testing process – if your business employs a drug testing agency.

In light of this change, we suggest you should review your drug and alcohol policy to ensure it is up-to-date and addresses any potential health and safety issues arising from an employee taking any prescription medications.

Sometimes medicines can impact both physically and mentally. The side effects may not even be recognised by the employee, due to the very nature of the drugs. That’s why it’s important that you know about prescription medicines being taken by your employees and have a process that is both easy and not intimidating for employees to encourage them to share this information.

The first step is to make sure your drug and alcohol policy and/or employment agreement/s require employees to let you know if they using any medication which may impact on their ability to do their job safely. It might pay to make sure you inform staff regularly of this requirement.

We also suggest that your drug and alcohol policy is amended to ensure that employees are required to provide you with a copy of their prescription (or information from their doctor) if they claim a non-negative drug test result is due to taking a prescription medication.

While there are privacy issues to consider, the law requires an employee to tell an employer about any health conditions or disabilities they have that could possibly put either themselves or someone else at risk of harm (mental or physical) while carrying out their job, or make it difficult to perform their job. An employer, for their part, cannot discriminate against someone because they have a health condition or disability.

The laws are complex in this area so make sure you seek legal advice to review, amend or create a drug and alcohol policy and/or employment agreement wording.