The issue of whether employers are allowed to randomly test their employees for drugs has been in the news recently in relation to the Air New Zealand case.

In that case, the Court said that Air New Zealand was allowed to do random drug tests on certain employees in safety sensitive areas under certain circumstances. The decision was specific to Air New Zealand and does not mean that employers are now able to randomly test their employees.

There has only been one other Court case about random drug testing. That case involved an employment contract that had a condition in it that the employees consent to undergo drug and alcohol testing when required. The Court decided that the contract was harsh and oppressive and did not allow the random testing to take place.

One significantly grey area is where to draw the line between the individual’s right to privacy and their right to refuse to consent to any sort of compulsory medical treatment or assessment, versus the employer’s right to set conditions of employment that adequately protect their interests under general law and the Health and Safety in Employment Act.

With stricter health and safety laws, more and more employers are wondering if they have an obligation to check their workers for any effects of drugs. Employers are required to identify hazards to employees at work and to take all practicable steps to eliminate significant hazards.

The Air New Zealand case confirms that random testing of workers in safety sensitive areas is likely to be permissible, although at this stage each employer will need to individually seek the Court’s permission to be able to randomly test employees. One of the questions the Court will need to consider is “what is a safety sensitive area?”. The Court will also need to consider the actual procedure to be followed for the drug tests.

At this stage it is permissible:

1. To do pre-employment drug testing.
2. To test workers suspected of taking drugs whose behaviour is, or could be, harmful.
3. To test workers involved in an accident or near miss.

Employers need to be aware that in order to introduce any drugs testing system there needs to be extensive consultation with the workforce. Decisions on what is right for a particular company or industry will depend on the circumstances.