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employment

Drug testing in the workplace: When is it legal?

Key Takeaway

Drug testing in New Zealand workplaces is legally permissible under certain conditions, primarily driven by health and safety concerns, and must comply with the Employment Relations Act, Health and Safety at Work Act, and Privacy Act. Policies must be reasonable, clearly communicated, and developed in good faith. Random testing is generally only justified in genuinely safety-sensitive roles.

Drug Testing in the New Zealand Workplace: When is it Legal?

Drug testing in the workplace is a measure employers may implement to ensure a safe working environment and manage risks associated with worker impairment. Impairment refers to any state where a person's physical or mental abilities are diminished, potentially affecting their capacity to perform tasks safely and effectively. In New Zealand, the legality of workplace drug testing is governed by several key pieces of legislation, balancing an employer's duty to provide a safe workplace with an employee's right to privacy.

The Legal Framework

Several New Zealand statutes underpin the legal framework for workplace drug testing:

  • Health and Safety at Work Act 2015 (HSWA): This Act places primary duties on persons conducting a business or undertaking (PCBUs), including employers, to ensure the health and safety of workers so far as is reasonably practicable [Source: Health and Safety at Work Act 2015, s 36]. Workers also have duties, including taking reasonable care for their own health and safety and not adversely affecting the health and safety of others [Source: Health and Safety at Work Act 2015, s 45]. Impairment by drugs or alcohol can create significant health and safety risks in certain workplaces.
  • Employment Relations Act 2000 (ERA): This Act establishes the principle of good faith in employment relationships, meaning parties must deal with each other openly, honestly, and without misleading or deceiving each other [Source: Employment Relations Act 2000, s 4]. This principle applies to the development, implementation, and application of workplace drug and alcohol policies.
  • Privacy Act 2020: This Act regulates the collection, storage, use, and disclosure of personal information, which includes information obtained through drug tests. The Privacy Principles require that personal information is collected for a lawful purpose connected with the organisation's functions, and that the collection is necessary for that purpose [Source: Privacy Act 2020, s 22, Principle 1]. It also requires that personal information is collected in a manner that is fair and does not intrude to an unreasonable extent on the individual's personal affairs [Source: Privacy Act 2020, s 22, Principle 4].

When is Drug Testing Permissible?

For drug testing to be lawful and justifiable, it generally needs to be linked to legitimate health and safety concerns, be a reasonable response to those concerns, and be implemented fairly.

  1. Contractual Basis: Often, drug testing is permissible if it is explicitly included in an employment agreement or a workplace policy that has been communicated to and accepted by the employees. For new employees, this can be a condition of employment. For existing employees, the introduction of a new drug testing policy or changes to an existing one must be done in good faith, typically involving consultation and agreement, to be enforceable [Source: Employment Relations Act 2000, s 4].
  2. Health and Safety Justification: The primary justification for workplace drug testing is usually to manage health and safety risks. Employers must identify the specific hazards that drug or alcohol impairment could pose in their particular workplace [Source: Health and Safety at Work Act 2015, s 36]. The nature of the work is a key factor; roles involving operating heavy machinery, driving, working at heights, or supervising vulnerable people are more likely to justify drug testing than administrative roles.

Types of Drug Testing

Different scenarios may justify different types of drug testing:

  • Pre-employment Testing: This is generally permissible for roles that are safety-sensitive. Prospective employees are typically informed of this requirement as part of the application process.
  • Random Testing: This type of testing is often the most contentious due to its intrusive nature. It is generally only considered justifiable in genuinely safety-sensitive workplaces where the risks of impairment are very high, and alternative, less intrusive measures are insufficient to manage the risk. The employer must demonstrate a clear and significant health and safety risk to justify random testing.
  • For-cause (or Reasonable Suspicion) Testing: This occurs when there are objective grounds or reasonable suspicion that a worker is impaired by drugs or alcohol in the workplace. Such grounds might include observable behaviour (e.g., slurred speech, unsteady gait), an odour of alcohol or drugs, or significant performance issues.
  • Post-incident/Accident Testing: This can be justified after a workplace accident or incident where there is reasonable suspicion that drug or alcohol impairment may have been a contributing factor.
  • Return-to-work Testing: May be required as part of a return-to-work programme following a positive test or a period of rehabilitation.

Key Considerations for Employers

For drug testing to be lawful, employers generally must:

  • Develop a Clear Policy: A comprehensive drug and alcohol policy must be developed, communicated to all employees, and consistently applied [Source: Employment Relations Act 2000, s 4]. The policy should outline when testing may occur, the methods used, consequences of a positive test or refusal to test, and support options.
  • Ensure Reasonableness: Any testing must be reasonable in the circumstances, taking into account the nature of the job, the level of risk, and the intrusiveness of the testing method [Source: Privacy Act 2020, s 22, Principle 4].
  • Maintain Confidentiality: Results of drug tests are personal information and must be handled in accordance with the Privacy Act 2020 [Source: Privacy Act 2020, s 22, Principle 5, Principle 6, Principle 8].

Employee Rights and Obligations

Employees typically have the right to be fully informed about any workplace drug testing policy. While an employee may refuse a drug test, such refusal can have employment consequences, potentially leading to disciplinary action up to and including dismissal, particularly if the refusal breaches a lawful and reasonable instruction or policy [Source: Employment Relations Act 2000, s 4]. Employees also have the right to challenge test results or the fairness of the testing process.

Consequences of a Positive Test or Refusal

The consequences of a positive drug test or a refusal to undergo testing should be clearly outlined in the employer's drug and alcohol policy. Depending on the severity of the situation and the terms of the policy, consequences can range from referral to counselling or rehabilitation programmes to disciplinary action, including warnings, suspension, or dismissal. Any disciplinary action must be carried out fairly and follow due process [Source: Employment Relations Act 2000, s 103A].

When to Seek Independent Legal Advice

It is recommended that individuals or organisations facing complex issues related to workplace drug testing, such as policy development, challenging test results, or addressing disciplinary actions, seek independent legal advice. Information regarding employment rights and obligations can be obtained from official government agencies. Community Law Centres also provide free legal assistance and information on employment matters across New Zealand (https://communitylaw.org.nz/).

Key Resources