Drug testing and privacy

Drug and alcohol testing has become a necessary tool for employers. It is understandable that companies would want to implement drug testing to ensure the workplace and all who work in it are kept safe. The Health and Safety in Employment Act 1992 states employers have a responsibility to ensure a safe workplace and that all practical steps are taken to ensure the safety of the employees. http://www.dol.govt.nz/workplace/knowledgebase/item/1361

I work in an environment that is a little bit different in that we employ people who then go on site to work for other companies. Job assignments can range from construction to office management. It is not a pre-employment requisite to drug and/or alcohol test, however if a client requires a worker to be drug tested before they are allowed on their premises we ensure it is done by a AS/NZS 4308:2008 certified tester. www.nzstandards.co.nz

A drug test can be taken for on behalf of our clients for the following scenarios; Prior to employment as a pre-employment screening process; Post-accident; Where there is reasonable suspicion of drug/alcohol abuse; On a random or periodic basis; As a follow up procedure after a positive test.

Applicants can be asked during the interview process that, if required, would they pass a drug test. They are not discriminated in any way by their answer. If required by a company that has a drug and alcohol policy they are advised a drug test will be performed. It is then up to the applicant to accept or reject a test and accept the implications of the result. If the candidate returns a negative pass (fail) test for any of the drug classes they are obviously not sent to the job. A variety of drugs are tested for.

I had an applicant fail a drug test where prescribed medication was detected. It was declared on the consent form and a doctor's signed confirmation was received. Employers also need to remember that a reaction to a completely legal "over the counter" drug could impair a worker's judgement e.g. taking something for the flu could make an employee drowsy and cause an accident or near miss incident. Employees need to ensure warnings on packaging are followed e.g. "Exercise caution while driving and operating heavy machinery in addition to allowing extra time for decision making."

We can establish that it is fair to request a drug test for workplace sensitive areas. What about after work? An employee has a rudimentary right to privacy outside the workplace. Surely what happens in the hours outside work in the employee's private life should remain private. Mr Gallivern's comments regarding workers changing their personal habits and how it "extends to their home life as well" implies the home is better off. This is only an assumption and could be interpreted as an invasion of privacy.

When the employee walks out the workplace door, should the employer still have control or interest in their personal time activities? Would social media be included? If an employee under the influence of drugs or alcohol posts something on, for example, Facebook, does that give the employer a right to drug test the employee when he next arrives for work? I am sure it would be tempting, but would be an intrusion of privacy as it was done in the private time of the employee. The individual rights of the employee must be protected as per Human Rights Act 1993 and the Bill of Rights Act 1990.

Privacy is an individual right to decide how much other people know about us - by the degree of information we share, the way we live our lives socially or the time we spend alone. The Privacy Act 1993 ensures it is legally protected. The employer must consider the privacy issues associated with drug testing. Is the employer concerned about a safe workplace or do some organisations think along Mr Galliven's "lower organisations health and safety costs" and therefore increasing profits? Mr Galliven's comments are thought evoking as to other reasons employers may introduce drug testing.

I agree that certain habits can affect the lives of people, but it may not be just drugs or alcohol. There are often a variety of aspects in a person's life that can affect the way they work- a health related issue, out of work commitments (e.g. volunteer work), family problems, even work conflicts could all contribute to workplace safety. The employer should take all these into account when deciding whether to action a drug test on an employee. If an employer feels a drug test on an employee is deemed necessary, complete discretion is required to ensure privacy during the process.

The law does not make it wrong to ask for an employee to do a drug test but it may help determine whether the request is justified. "Drug and alcohol testing can be the subject of a fair and reasonable employer policy, even if this is not expressly included in employment agreements." - John Rooney Simpson Grierson. There should be a clear and concise outline as to why a drug test is required, for example, if there is an accident or near miss a compulsory drug test will be conducted, and the consequences following a failed drug test. Strategies need to be in place to assist employees who return a fail including a warning, counselling, support in rehabilitation. The implications of a failed drug test result could be devastating in today's competitive and less forgiving work environment and society as a whole.

I think drug testing in the workplace is here to stay. Employers and employees need to ensure it is done in a fair and ethical manner to maintain the continued safety within the workplace.