Weighing up the risks of drug testing at work

By MARK STORY

Union leader Andrew Little says employees should watch out for employers trying to adopt random drug testing on a point of principle rather than on a point of safety.

Employers and unions agree the employment court ruling upholding Air New Zealand's right to randomly drug test (RDT) workers in safety sensitive areas is a victory for common sense.

The court's ruling, says employment law specialist Andrew Scott-Howman is a good balance between employers' obligations on one hand and employees' rights on the other.

What the court's decision does for employers, says Paul Jarvie manager (OSH) Employers and Manufacturing Association Northern is to establish a strategic framework when health and safety butts up against issues such as privacy. In other words, within certain workplace areas, the court says there will be times when privacy is outweighed by greater risks.

"Only after employers have proved they have got safety sensitive areas, adopted the correct methodology, and the necessary consultation can they contemplate RDT testing," says Jarvie. "What constitutes randomness also needs defining to ensure transparency."

But where the ruling comes unstuck, argues Scott-Howman, is the notable absence within the court's 80-page deliberations of any definition as to where the "safety sensitive" workplace starts and finishes.

Traditional safety sensitive industries are a no-brainer. Front-line workers within mining, forestry, fisheries, construction and the engineering sector face a high-risk of personal injury. But the single biggest spat between unions and employers, says Engineering, Printing and Manufacturing Union national secretary Andrew Little, will be over what constitutes a safety sensitive workplace.

For example, Little's heckles would rise if the entire transport sector suddenly moved to impose random drug testing on any of its workers driving vehicles.

"The question of what is safety sensitive seems to have been left by the court to management's prerogative," explains Little. "But once an employer establishes an inherent right to impose RDT testing - within areas deemed safety sensitive - it will erode an employee's right to challenge it."

As long as this remains a grey area, argues Little, the opportunity for employer abuse will always be there. It's early days, but Little suspects a lot of management guesswork will go into correctly interpreting safety sensitivities within more obscure back-office functions.

Most companies will do the right thing, but Little fears that the definition of a safety sensitive workplace could be bent to suit an employer's own agenda. For example, he says, the new ruling could be dressed up by management to get rid of "pot-heads" from the workplace on a point of principle, not on a point of safety.

Scott-Howman claims random testing ups the ante on the three-pronged drug testing arsenal already provided for within the law. Based on due consultation with employees and unions, employers have been entitled to screen for drugs at the pre-employment stage, post-event for example, after a workplace accident - or on reasonable suspicion - for some time.

Based on feedback from his members, Jarvie says no employer has expressed the need to up the ante at this point. Existing measures have been sufficient to stamp out drug use internally. But what the Air NZ case casts, says Jarvie, is a beam of light into the doorway through which some employers can now pass to successfully implement a random testing regime.

He expects employers who push for testing to face flack on the privacy front. But he says they'll also be damned if they give in to these pressures because of workplace legislation requiring them to ensure high safety levels.

Faced with that dilemma, he recommends [interested] employers go ahead with testing on the proviso it's done within the law, in good faith, and with all the necessary protocols firmly in place.

"It would be better to fire an employee for breaking the safety rules than have to tell a loved one their partner's been killed at work," says Jarvie.

Striking at the heart of the court's lengthy deliberations is one simple conclusion - employees working within safety sensitive areas can be randomly tested for drugs - those who aren't can't. In other words, testing can't just be done carte blanche; the court rejected the notion of advance consent. RDT testing must be enshrined within either an employer's workplace policy or included within individual or collective contracts.

Meanwhile, the net effect of the court's ruling, says Little, may leave staff to ponder the future with their employer. For example, he says many Air NZ employees, some with 15 years or more service must re-think if they're now comfortable with someone watching them urinate into a plastic beaker - every time RDT testing is conducted - as part of their new working relationship.

It might be cold comfort for those now subjected to testing, but Little says at least the court provides a rigorous procedural framework around how they're to be carried out and who has access to the results.

So what happens if employers and unions differ on what constitutes a safety sensitive workplace? It's likely to end up back in court for further clarification. But Jarvie would be worried if the employment court ended up ruling on matters it's not qualified to address.

One touchstone for employers, says John Hannan, employment lawyer with Phillips Fox, could be what constitutes a hazard under Health & Safety in Employment Amendment Act. "But the urgency with which employers act - to introduce RDT testing - will be based more on how they perceive safety as a mission critical area," suggests Hannan.

Further definition of what constitutes a safety sensitive workplace, says Jarvie requires greater evaluation of risk. A useful starting point in measuring risk, he adds, could be the Australian and New Zealand Risk Management Model 4360.

But as long as only a trickle of high-risk firms gravitate towards RDT testing, Hannan says broader risk evaluation remains somewhat academic. He expects most employers (with safety sensitive workplaces) to take a "soft-serve" approach and include RDT testing provisions within the next round of employment contracts.

While drug testing will be a much more common practice 10 years from now, Jarvie expects the gravitation to be slow. What's likely to cool employer sentiment towards early adoption of RDT testing, says Jarvie, is the cost.

"It takes three to six months to introduce a basic drug testing regime. At around $100 the cost of a full-blown [evidential] RDT test isn't cheap, especially when compared to a pre-screen test of around $10."

Testing may take a few years to fully implement across safety sensitive sectors. But Scott-Howman believes the refusal by an employee to tolerate it may make their ongoing employment tenure problematic at best.

"So what happens if an employee refuses to sign a new contract that includes RDT testing. Are they automatically entitled to be offered a position within a non-safety sensitive area?"

While employers with safety sensitive workplaces are entitled to introduce testing policies, Little reminds them they are required to consult with and take the unions' views into account - assuming there's one already on site - before making any decisions. Instead of taking the moral high-ground, he urges employers to reach the best means of testing implementation only after sufficient consultation with their staff and the appropriate unions.