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Laws on drug testing in the workplace

What are the laws surrounding drug testing in the workplace?

There is no specific employment related law that deals with drug testing in the workplace.

Whether employees can be tested for drugs in the workplace will depend on a variety of factors. The following are examples of factors that may be taken into account but should not be taken as a detailed guide, as each case will be different.

  • The industry in which they work and the type of work they do.
    o Whether an employee's work directly impacts the safety of others may affect whether it will be reasonable to drug test that employee. Positions with that potential are more common in some industries than others.
  • Whether there is a potential health and safety risk.
    o The Health and Safety in Employment Act 1992 places a duty on an employer to provide a safe workplace. This may sometimes justify drug testing. This is more likely to be the case if an employee works in a safety sensitive area, shows signs of being affected by drugs, or has recently been involved in a workplace accident or "near-miss".
  • Privacy considerations.
    o An employee's right to privacy in relation to personal information under the Privacy Act 1993 and common law may need to be taken into account, particularly when considering sample collection procedures, the method of analysis, and the handling of test results.
  • The effect on basic individual rights.
    o Relevant laws to consider may include the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 (although the New Zealand Bill of Rights Act 1990 only applies to acts done by certain employers). Even if those laws do not make it unlawful for an employer to require an employee to undergo drug testing they may influence whether the requirement is reasonable.
  • The details of the proposed testing policy
    o Depending on the circumstances, random testing may be harder to justify than testing of specific employees for specific purposes, for example where an employee's ability to perform their job has the potential to affect the safety of others.
  • The provisions of the employment agreement.
    o If an employment agreement gives an employer the right to require employees to undergo drug testing then, provided the provision in the agreement is reasonable and does not contravene the protections contained in any relevant laws, it is more likely that the employer will be able to require drug testing. Similarly, it will be difficult for an employer to introduce drug testing if that right is not contained in the relevant employment agreement, unless the employee gives the employer informed consent.

If an employer suspects that an employee is using drugs, then as a first step it is advisable for both parties to try and resolve the issue by talking about the problem. If this is not successful either party may choose to seek mediation assistance through the Department of Labour.

The Privacy Commission provides guidance on the application of the Privacy Act, including the collection, use and disclosure of personal information, which would include information collected by an employer through drug testing.

Click here for information on How drug use affects the workplace & developing a drug and alcohol policy.

 

Date Modified: Tuesday, 9 July 2013

Disclaimer: The content on this website covers common problems. It will not answer every question and should not be used as a substitute for legislation or legal advice.State sector employers and employees may be affected by some differences in the laws that apply to them (e.g. State Sector Act 1988).The Department of Labour takes no responsibility for the results of any actions taken on the basis of information on this website, nor for any errors or omissions.