Safety Bulletin. Alcohol and other drugs ISSUE NO. 30 NOVEMBER Purpose of this bulletin. Introduction. Fit and proper person determination

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1 Safety Bulletin ISSUE NO. 30 NOVEMBER 2014 Alcohol and other drugs This safety bulletin is for most operators and seafarers. Seafarers and operators holding STCW (Standards of Training, Certification and Watchkeeping) certificates will need to adhere to the limits and requirements in relation to alcohol consumption on STCW vessels under the Maritime Transport Act (MTA) 1994, which establishes an internationally applicable alcohol limit for merchant seafarers. Purpose of this bulletin This safety bulletin highlights the duties operators and seafarers have under relevant legislation to operate safely and to ensure that their systems and actions do not cause risk to health and safety. This includes taking all practicable steps to ensure that there are no risks to health and safety as a result of alcohol or drug use. Introduction Consuming alcohol and using drugs adversely affects a person s behaviour and performance. Since 2010, coroners reports on maritime fatalities have shown that 9 out of 17 deceased commercial fisherman returned a positive result for alcohol and illicit drug use. While substance impairment may not have been the direct cause of the fatality, the presence and potential harm from alcohol and drug use and impairment to workplace safety is a concern. At present, Maritime NZ has the following checks in place to support an employer to ensure that alcohol and drug abuse is removed or minimised as a hazard in the maritime industry. The checks are: 1. Fit and proper person determination. 2. Non-SOLAS safety management systems. 3. Safety audit inspection. While these assessments are not restricted to checking for alcohol or drug matters, each step provides an opportunity to ensure that appropriate procedures are in place to remove alcohol consumption or drug impairment as a hazard in the workplace. Fit and proper person determination The MTA requires the Director of Maritime NZ to undertake a fit and proper person assessment for any person making an application for a maritime document. If an applicant shows prior convictions for alcohol or drug offending, or other information that causes Maritime NZ to believe the person may not be fit and proper to have responsibility for matters covered by the maritime document, Maritime NZ may require the applicant to show why they should be determined as fit and proper. 1

2 Non-SOLAS safety management systems Maritime NZ s regulatory and compliance role in relation to drug and alcohol use is in the areas of safe operation of ships and health and safety in the workplace. This is mainly through issuing maritime documents (as a form of entry control) and enforcement under the MTA and the Health and Safety in Employment Act (HSE Act) Under the MTA, the dangerous operation of a ship which could be a result of alcohol or drug impairment is an offence. The HSE Act requires employers and others to take all practicable steps to ensure the safety of employees and others in the workplace. The information required in any of the non-solas safety management systems (for example in a Maritime Transport Operator Plan (MTOP), Safe Operational Plan (SOP), safety case and specified limits permit) covers the operator s entire operation, to ensure that any safety risks are identified and managed. As part of an MTOP or SOP assessment, Maritime NZ will check that there is an appropriate drug and alcohol policy and procedure to ensure that steps are in place to address this hazard. Failure to have systems in place to effectively detect and prevent seafarers operating while impaired by alcohol or drugs could mean that an application for a maritime document (for example a Maritime Transport Operator Certificate) may be declined. Safety audit Maritime NZ will audit the safety management system to check that the safety management plan is followed and appropriate records are kept. Failure to follow the safety management system may result in Maritime NZ using one or more of a variety of compliance tools, including prosecution or revocation of the maritime document. Recommendations 1. Building an alcohol and drug-free culture Workplace policies and prevention strategies can help to change culture around drug and alcohol use. All maritime sectors large and small can benefit from an agreed policy on alcohol and drug misuse. This policy should form part of the operation s overall health and safety management system. Encouraging a culture where crewmembers look out for each other is important. If a crewmember suspects another crewmember is under the influence of alcohol or other drugs at work, they should feel it is necessary to report their concerns to their manager or an HSE representative. Crewmembers should be made aware that covering for their mate will put everyone at risk and that raising these concerns is not dobbing in a mate. It is important not to jump to conclusions when people display possible signs or symptoms of alcohol or drug use. These signs may be due to other reasons, such as health issues. 2. Prescription drug use Some prescription drugs can cause impairment. When a crewmember is on medication and a side effect is fatigue, the crewmember should feel they are able to discuss this with their manager. This will give their manager the opportunity to reassess the crewmember s duties and determine whether restricted duties may be appropriate while on medication. 2

3 3. Developing an alcohol and drug policy Every workplace is unique, therefore a one-size-fits-all alcohol and drug policy will not be suitable. It may be useful to consult with staff when preparing this policy as it can generate team buy-in. An employer must take all reasonable measures to make sure that crew are trained in and familiar with their drug and alcohol policy. Consider the following when developing an alcohol and drug policy: banning consumption, possession, manufacture, sale, buying or transfer of illegal drugs banning unauthorised use, consumption, possession, manufacture, sale or buying of legal drugs while at work banning unauthorised use, consumption, possession, manufacture, sale or buying of alcohol while at work having a fair and reasonable process for a crewmember to tell their manager about alcohol and drug dependency or work-related situations contributing to or involving alcohol or drug abuse setting out drug and blood alcohol content levels that will breach the workplace s drug and alcohol policy having a fair and transparent procedure for alcohol and drug testing setting out what happens if an operator returns a result that breaches the policy during a drug and alcohol test set out what happens if a crewmember breaches the drug and alcohol policy. 4. Drug testing Under the MTA, there are no specific requirements relating to drug testing in the workplace. Drug testing will depend on the workplace, with the exception of seafarers on STCW vessels. When preparing an alcohol and drug policy, it is suggested that drug testing should be considered: for crewmembers whose roles have a direct impact on the safety of others when there is a potential health and safety risk for example when employees work in a safety sensitive area when a crewmember shows signs of being affected by drugs when there has recently been a workplace accident or near miss. For more information on the laws on drug testing, see Appendix A: Laws on drug testing in the workplace (Ministry of Business, Innovation and Employment). 3

4 Information of interest Signs and symptoms of drug and alcohol use Work within the maritime sector requires alertness, accuracy and coordination. Eliminating or minimising any use of drugs and alcohol will decrease the chance of injury in the workplace. There are many other effects associated with alcohol or use of other drugs, for example: dizziness blurred vision slurred speech intense emotional highs and lows drowsiness and falling asleep at work sudden aggressive or violent behaviour lack of inhibition, judgment or self-control lack of coordination or impaired coordination and/or reflexes hangovers, including headaches, shaking, vomiting and nausea. Some other signs that may indicate someone is under the influence are: near miss incidents frequent absenteeism and/or lateness self-neglect difficulty relating to others. The Foundation for Drug and Alcohol Education (FADE) provides a more detailed explanation about the general effects specific drugs may have on an individual. For more information, visit the alcohol and drug information pages on the FADE website: 4

5 Appendix A: Laws on drug testing in the workplace Ministry of Business, Innovation and Employment What are the laws surrounding drug testing in the workplace? There is no specific employment related law that deals with drug testing in the workplace. Whether employees can be tested for drugs in the workplace will depend on a variety of factors. The following are examples of factors that may be taken into account but should not be taken as a detailed guide, as each case will be different. The industry in which they work and the type of work they do Whether an employee's work directly impacts the safety of others may affect whether it will be reasonable to drug test that employee. Positions with that potential are more common in some industries than others. Whether there is a potential health and safety risk The Health and Safety in Employment Act 1992 places a duty on an employer to provide a safe workplace. This may sometimes justify drug testing. This is more likely to be the case if an employee works in a safety sensitive area, shows signs of being affected by drugs, or has recently been involved in a workplace accident or "near-miss". Privacy considerations An employee's right to privacy in relation to personal information under the Privacy Act 1993 and common law may need to be taken into account, particularly when considering sample collection procedures, the method of analysis, and the handling of test results. The effect on basic individual rights Relevant laws to consider may include the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 (although the New Zealand Bill of Rights Act 1990 only applies to acts done by certain employers). Even if those laws do not make it unlawful for an employer to require an employee to undergo drug testing they may influence whether the requirement is reasonable. The details of the proposed testing policy Depending on the circumstances, random testing may be harder to justify than testing of specific employees for specific purposes, for example where an employee's ability to perform their job has the potential to affect the safety of others. The provisions of the employment agreement If an employment agreement gives an employer the right to require employees to undergo drug testing then, provided the provision in the agreement is reasonable and does not contravene the protections contained in any relevant laws, it is more likely that the employer will be able to require drug testing. Similarly, it will be difficult for an employer to introduce drug testing if that right is not contained in the relevant employment agreement, unless the employee gives the employer informed consent. If an employer suspects that an employee is using drugs, then as a first step it is advisable for both parties to try and resolve the issue by talking about the problem. If this is not successful either party may choose to seek mediation assistance through the Ministry of Business, Innovation and Employment. The Privacy Commission provides guidance on the application of the Privacy Act, including the collection, use and disclosure of personal information, which would include information collected by an employer through drug testing. 5