KEY POINTS:
We have recently been told by our employer that it will be introducing drug testing in our workplace. Do they need to consult us first before they do this? Are they legally allowed to do this if it is not in our employment agreement?
Your employer can unilaterally introduce drug testing in your workplace even if it is not expressly provided for in the employment agreement but the drug testing policy must be reasonable and your employer should consult staff before implementing the policy.
What is reasonable will depend on the circumstances of your workplace. Drug testing in New Zealand will be regarded as reasonable only in relation to workplaces which contain "safety sensitive areas". This means there must be a close connection between performing your duties under the influence of drugs/alcohol and operational safety. I don't know enough about the sort of work done at your worksite to know whether it relates to "safety sensitive areas".
There has been very little litigation about the reasonableness of drug testing in the workplace.
The legal position is that a unilaterally determined policy on employee impairment from drugs or alcohol consumption, including an appropriate testing methodology, is lawful in a safety-sensitive workplace. This legal position is established by general employment legislation and related case law.
In NZ Amalgamated Engineering and Manufacturing Union v Air New Zealand Ltd, the Employment Court agreed to the reasonableness of drug and alcohol testing provisions introduced by Air New Zealand, depending on whether employees were engaged in safety-sensitive areas or operations.
The recent decision of the Employment Court in the case of MUNZ and Ors v TLNZ and Anor also supports the lawfulness of a unilaterally imposed drug testing policy as long as the policy is reasonable in all the circumstances. The court in this case said that the reasonableness of the policy will depend on the circumstances of the enterprise and of the employees, and on the content of the policy and the procedures adopted by the employer.
So your rights depend on the nature of your workplace, the particular jobs carried out and the appropriateness of the testing procedures proposed by your employer.
A reliable method of identifying the risk of harm will be considered to be an appropriate and reasonable testing procedure.
Your employer should explain the reasons for the policy, how the testing will be carried out, the procedure for consent to testing, the consequences of refusing consent (ie disciplinary action), the type of testing (breath/urine/blood), and the possibility of medical review of test results. Also, testing should be carried out by a reliable external agency.
If you are still unsure about your rights please contact an employment lawyer for assistance.
