Watch your words in the search for staff
Recently, an Auckland vet clinic came under fire after posting an advertisement for an intern medical specialist which said that the position would not suit ‘‘someone who plans to take long periods of time off for parenting.’’
The advertisement indicated that the employer intended to discriminate against applicants based on their family status and gender. Refusing to employ an applicant, or treating an applicant differently, based on those grounds is a breach of the Human Rights Act 1993.
Generally, ads for farming jobs
Personal recreational use of cannabis may have no bearing on an applicant's ability to be a good employee.
don’t suggest that the employer intends to discriminate based on family status or gender. However, we are increasingly seeing job ads, particularly in farming, which require successful applicants to pass a drug test before they are offered work.
Drug testing raises an interesting issue.
Generally, pre-employment drug testing is a legitimate process that an employer can require job candidates to go through. This is not ‘discrimination’ in the Human Rights Act sense and, if the employee consents to the test, it is allowed under New Zealand law.
There are a range of preemployment drug tests available.
These include swab tests (which detect recent drug use) and hair follicle testing (which is capable of detecting drug use from months ago).
Farmers should consider whether follicle testing, which can detect historic drug use during an applicant’s personal time, is appropriate for a pre-employment drug test. Personal recreational use of cannabis may have no bearing on an applicant’s ability to be a good employee. Rejecting any applicant who returns a positive result to a hair follicle test presents as potentially an unreasonable and unnecessary barrier to employment.
Of course, employers should insist that their workplaces are drug-free and their workers are not impaired. As long as cannabis possession remains illegal in New Zealand, there is a good reason for farmers to screen their job applicants for potential cannabis use. However, that could change if possession of cannabis is decriminalised for personal use.
If that happens, cannabis will be treated like alcohol. Just as an employee today can have a few bottles of beer or glasses of wine at home after work, they should be entitled to a joint, provided that you do not turn up for work hungover or impaired the next day. ❚ Lawyers and legal executives from Auld Brewer Mazengarb & McEwen write about legal topics affecting farmers. The content of this article is necessarily general and readers should seek specific advice and not rely solely on what is written here. Those who would like further information on any of the topics, please contact Auld Brewer Mazengarb & McEwen. This column was prepared by Sean Maskill, who can be contacted by emailing sean.maskill@abmm.co.nz.