Legal profession upping use of drug tests

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New Zealand’s law firms are reportedly upping the ante when it comes to ensuring new hires are not using drugs.

Following a string of cases involving lawyers being trialled for drug offences, the number of lawyers being tested for methamphetamine, cocaine and cannabis has soared over the past year.

According to The New Zealand Herald, North Shore company The Drug Detection Agency (DDA) now has 18 law firms signed up to its services – and that’s in Canterbury alone.

“It's all risk mitigation,” said Kirk Hardy, CEO of the DDA.

The Herald reported that law firms are using the agency to conduct tests on potential new barristers and solicitors.

The tests are able to detect whether amphetamines or methamphetamine, prescription medication, cocaine or cannabis have been abused over the previous three to 12 months.

Around 7% of the DDA’s tests are pre-employment tests undertaken within the legal or financial sectors.

“Some lawyers are quite hot on it, while others have said, 'Geez, we'd be too scared to introduce that into our company’,” Hardy said.

The Law Society told The Herald that drug testing was a matter for individual firms to consider.

“Lawyers must provide clear and competent services and it's important they are not mentally or physically impeded by drugs,” said president Chris Moore.

Lawyers who are found to have used drugs are likely to have breached Law Society rules and could be struck off.

HRM recently reported that New Zealand’s construction sector was struggling with a rise in the number of failed drug tests.

Christie Hall, Ernst and Young’s employment law leader said at the time that when the new Health and Safety legislation is introduced, the use of the tests will become more predominant.

“Random drug testing is becoming increasingly common,” she said. “It used to be restricted to safety sensitive areas,” she said. “It used to be restricted to safety sensitive areas.

“I think you'll get a lot of employers saying what we do is safety sensitive so we can randomly test.”

Hall added that employees will be obligated to take random drug and alcohol tests if clear expectations surrounding substance use are included in employment agreements.

“If you've signed up to the policy – if there's a clear policy in place – if the employers have made very clear their expectations [and] you then refuse a drug or alcohol test, there will be consequences.”

She said that random testing also opens up the question of whether an employee is fit to carry out their work.

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  • Jasmine Wikstrom on 26/01/2016 1:06:11 p.m.

    Chloe’s discussion in this article is regarding rapid increase of industry specific drug testing in the workplace particularly at the pre-employment stage, and the validity, fairness and ethicality of undertaking such situational testing’s. I will discuss and evaluate the claim made around why this is deemed a necessary vetting procedure, and if this is ethically sound and fair to employees.

    The increased awareness of drug use within the legal and construction industries has sparked implementation of drug testing throughout workplaces in New Zealand (Taylor, 2015). The threats imposed to performance and safety standards, the ability to make judgement decisions while applying legislative practices and the service provided needing to be clear and competent with absolutely no room for impairments are critical claims in this article that support the increased drug testing today (Taylor, 2015).

    Ethical stances and viewpoints are definitely highlighted in regards to this topic. On the one case, employees may feel that this is an invasion of how they behave recreationally in their down time. I’m sure we can appreciate that to an extent, especially if we know that drug use doesn’t automatically mean drug abuse (Polytech, 2016). And if there is drug use involved, the drug testing doesn’t measure impairment on the individual (Polytech, 2016). What I strongly believe is that if there is an aspect of risk involved and that this drug use which is in the individual’s spare time could have severe risk impact in the workplace, it is absolutely an appropriate policy to exercise. The ethicality involved is around how it’s used, how the policy is structured and how transparent the policy is.

    Bell Gully from the NZ Drug Detection Agency gives guidance that to make sure the policy is communicated to all employees, that the policies in place clearly label expectations including specific safety rules and to get advice from the union about if implementing drug testing within policy is acceptable (Bell, 2012). The argument is that others within these industries should also believe in the importance of these standards required for each industry and therefore this is justification of why it is necessary and warranted for the drug testing to be applied into policy and practices, pre-employment screenings and even as a condition of employment contract (Taylor, 2015). Just as any other vetting procedures, having the consent up front in the Application for Employment would set the standards that the employee could expect right from the beginning. They are more than able to decline at that stage if that isn’t what they believe in. If the employer did try to obtain information about an employee in an underhand way, the employee would be entitled to take legal action towards the employer. This is why it is very important that both the employee and employer are aware of their rights and obligations. The employer should be, as in any other situation dealing with private information, diligent with how it collates and uses the information of drug testing as any further action needs to involved police representatives (Bell, 2012).

    Under the Health & Safety in Employment Act, employers duty is to ensure all practicable steps are taken to provide and maintain a safe working environment (Bell, 2012). Hazard identification and minimization is key in that process, and in my opinion drug use and drug testing fits into that basket as requiring a hazard identification tool. In an applicable industry such as legal and construction that we have touched on, the outcome wanted is to reduce personal injuries, human error accidents and the associated costs (Bell, 2012). If we ask, is this fair and ethical, the answer should be absolutely yes when human life and careers could be harmed from the side effects.

    Michael Cranford had a very similar theory than that of this article, and he strongly felt that an employer is entitled to test employees for drug use, saying drug testing accesses information about an employee that are very relevant to the terms of the contractual agreements between an employer and employee (Polytech, 2016). The article also stipulates that drug testing, especially random testing, opens up the question if the employees are fit to carry out the work and duties that is required of them. When impairment and performance just do not mix, is it simply not viable to be a drug user and a solid performer? In my opinion, industry specific drug testing is only the beginning, and in many cases where safety and impairment causes a high risk factor in the profession, it is especially valid and fair not only to the employee, employer and appropriate stakeholders involved that drugs are out of the question.

    Coming back to Cranford’s viewpoint, we should be working by the assumption that an employee is hired to be productive, and when accessing employment information about productivity and the employee, it is key for a manager or a boss to understand and measure performance. Cranford suggests that drug testing could be beneficial in giving employers an indication if an employee could have productivity issues (Polytech, 2016). Being an employee in such a workplace that conducts testing, and you are aware of the consequence that drug use could have, such as leaving a black mark against your name or even cause harm to yourself or others at work; the testing is actually beneficial and in the best interest for the employee. If you think of it as this, you know the testing is in place, your chances of being caught are heightened incredibly, would you still partake in the drug use?

    When we are presented with the key reasons why drug use and particular professions just do not mix from a safety, legality and operational standpoint, the need to implement and screen for drug use seems more ethically practical and especially so in an industry that requires such due diligence. When asked, is drug testing ethical my answer is yes, as long as is relevant to the employee’s risk factors and ability to perform in their job or industry, and is undertaken professionally and transparently by employers.

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