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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Legal viewpoint — Drug testing: safety vs privacy

KYLIE DUNN and BELLA MOORE suggest it could be time to review the balance between safety and privacy in the context of workplace drug testing.

Drug testing in New Zealand workplaces has become a reasonably common occurrence. The practice is lawful, provided that there is a relevant policy/contractual obligation, and that testing occurs in accordance with those obligations. Random testing is the most contentious type of workplace drug testing in that it is suspicionless and therefore a greater intrusion into the privacy of employees.

The Employment Court approved of random testing in 2004 in NZ Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand, but only in safety sensitive areas. This was a balancing of the competing demands of privacy and health and safety. As society’s expectations change it is an issue that bears reconsideration.

SAFETY VS PRIVACY

In considering the balance between safety and privacy, the Employment Court in Air New Zealand was mindful of the extent to which drug testing intrudes in an employee’s personal life. However, some intrusion was warranted in the interests of safety – and a greater intrusion was acceptable where safety was a greater issue. In this regard, the Court ultimately decided that safety took precedence over privacy when the employee is working in a safety sensitive area.

Conversely, the Court held that it was not reasonable to require employees in non-safety sensitive roles to submit to suspicionless random testing, and privacy trumped the safety concern.

In the 2012 case of Hayllar v The Goodtime Food Company, the Employment Court again considered privacy in the context of drug testing. At this time, it was the nature of testing (urine or oral fluid) that gave rise to privacy concerns. While the Court did not conclusively determine the point, it indicated a willingness to consider the privacy implications of testing methods in the context of lawfulness.

Whether the current balance between privacy and safety remains in the right place is an ongoing discussion. The impact of changing attitudes to health and safety (particularly in light of the enactment of the Health and Safety at Work Act 2015) may lead to courts being more willing to extend testing regimes. On the other hand, the potential legalisation of cannabis – as proposed in a referendum later this year – may signal a change to restrict inquiry into use of cannabis outside of work hours.

CHANGING METHODS

We can expect the courts to take a closer look at testing methodology as attitudes change and technology improves. Given urine testing can capture use over several weeks, it is not an accurate gauge of impairment. But oral fluid testing also has its limitations. We understand that new methods of testing are being developed in the US and Canada, including a cannabis breathalyzer. The company developing the breathalyzer claims the device is successful in being able to detect impairment through identifying molecules of THC.

Also in the US, a method of testing is being designed that would be able to measure performance against a baseline to assess impairment, perhaps on a similar basis to concussion testing in sport. While these are “watch this space” issues, improvements in technology will likely lead to the revisiting of the safety/privacy balance.

SAFETY SENSITIVE AREAS

The other consideration that could be revisited is the concept of a safety sensitive area or role. In Air New Zealand and subsequent cases, the courts typically consider safety sensitivity in a physical sense – when an individual’s physical presence in an area could put them in danger. In Air New Zealand, the Court held that human resources advisers, in-house lawyers and payroll staff would not be safety sensitive positions, but pilots, aircraft engineers and flight planners would be.

Using this logic, a head office is not a safety sensitive area, even though senior employees may make decisions with potentially significant health and safety implications. Should a CFO deciding what safety equipment to buy (or whether to buy it at all) be considered to be working in a safety sensitive area?

Despite Air New Zealand being decided 15 years ago there has not been much evolution in this area. Perhaps it is time to think more broadly about what constitutes a safety sensitive role in New Zealand?

KYLIE DUNN is a partner and BELLA MOORE a solicitor with Russell McVeagh.

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