Karen Radich from Clifton Chambers
For workplaces wanting to be able to implement random drug testing, the question of what actually qualifies as a “safety sensitive” workplace has long been an issue. Now, a new ruling from the Employment Relations Authority (ERA) provides some clarity.
Under New Zealand law, random testing of employees for drugs or alcohol is only justifiable where they work in “safety sensitive” areas or roles, and where a policy or contractual provision allows for random testing to occur, employment lawyer Karen Radich from Clifton Chambers wrote recently.
In the precedent-setting 2004 Air New Zealand case, the Employment Court termed random testing “suspicionless testing”, but held that the random or suspicionless testing of all employees was not reasonable, she said. “The Court could not justify the random testing of employees working outside safety sensitive areas… More recently, the Court accepted that employees working within wharf limits were in safety sensitive areas and could be subject to random testing.”
However, there has been little other judicial guidance as to what comprises a “safety sensitive” area of work or position, Radich continued. Then, last month, the ERA determined that a Mighty River Power employee, who was working at a geothermal power station, was working in a “safety sensitive” role – and could not refuse a random drug test.
The ERA found that the exposure to hazards and risks on the site was high, that the consequences of an accident or incident could be catastrophic, and that the company was entitled to determine the whole site was “safety sensitive”, she explained. “It also held that the law had not ‘moved on’ from the approach in the Air New Zealand case, and that random testing was justifiable in safety sensitive areas.”
Meanwhile, Charlotte Parkhill from Kensington Swan recently recommended that employers with “safety sensitive” workplaces should adopt and enforce a culture of drug and alcohol testing. “This will ensure employees are aware of the strict drug-free position and also encourages managers to implement drug testing policies,” she said. “It is not enough to have the right to test in your policies – you must carry out the testing regularly and consistently in order to manage the hazard eﬀectively.”
HR pros can get comprehensive information on drug testing and on developing a drug & alcohol policy from the Ministry of Business, Innovation & Employment
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