trendz - our client newsletter

august 2004

the air new zealand drug testing policy – is it lawful?

In a case brought by six unions, the Employment Court has ruled in favour of Air New Zealand's right to introduce drug testing but stated it may only test some of its employees in specific situations for drug use. The unions' main concern was with the random nature of the testing.

The court held that the Health and Safety in Employment Act and the law generally imposed absolute duties on an employer to take "all practicable steps to eliminate hazards to employees and others." This lawful requirement made it important and reasonable that employers should be able to take measures, including drug testing in safety sensitive areas. The key to whether or not the testing is lawful is dependent on the area in which the testing takes place.

This decision, although specific to Air New Zealand clarifies the following:

• random testing of workers not in safety- sensitive areas would be unjustified
• justification must include "just cause", for example where behavior or evidence suggests drug use which could be harmful or present risk i.e. where there has been an accident or near miss
• pre-employment testing is justified in the interests of safety

The Air New Zealand case was the first test of the new provision in the Act but the question remains, however, would the unions ever have won against an organisation whose safety concerns are so clearly paramount? Would any judge really have sacrificed the commitment to the safety of Air New Zealand customers for the protection of the privacy of their staff?

Employers contemplating random or blanket testing need to get informed advice. Barbara Buckett & Associates can provide:

• advice on the development and implementation of drug testing processes within the workplace
• advice on the potential pitfalls and problems associated with such processes Drug testing is often associated with serious health and safety, privacy, human rights and Bill of Rights issues. Call us for advice.

If you would like to discuss any issues raised in this article or would like further advice please contact us at Barbara Buckett and Associates or visit our discussion group.

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Disclaimer: This article is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Please refer to our Legal Notices.

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