The only time employers are likely to accommodate an employee with a drug problem would be if it’s an addiction that constituted a disability, according to Sherridan Cook, partner at Buddle Findlay.
Cook told HRD that under the Human Rights Act or the Employment Relations Act, alcohol dependency or drug addiction can be diagnosed as a disability.
“The diagnosis could potentially meet the definition of a disability in the Human Rights Act which means that you couldn’t necessarily terminate them simply because of that addiction,” said Cook.
“The employer would have to look at whether they could reasonably accommodate the employee with that disability, i.e. with that addiction.”
“It would probably be quite rare for that to occur, as safe work practices and the need for the employee to still be doing their job are going to mean that despite being a disability you are probably likely to terminate because you can’t reasonably accommodate it.”
Cook added that the typical scenario could involve the employer suspecting the worker is under the influence and requiring them to take a drug test which they have failed.
“Then you would need to comply with your drug and alcohol policy and work through a rehabilitation program, so the goal would be to rid them of that addiction.”
Last year, HRD reported that some industries in New Zealand are struggling with talent shortages due a widespread inability to pass drug tests.
The then-PM Bill English said at the time that under workplace safety, “you can’t have people on your premises under the influence of drugs and a lot of our younger people can’t pass that test”.
“I’m regularly told by employers that one of the significant barriers is getting younger people through drug tests,” said English, adding that he hears the complaints two or three times a week, from employers across all industries.
Employers cautioned over Christmas parties
Ask a Lawyer: Is HR at risk if employees drive home drunk?