News
Drug testing in the workplace - essential or excessive?
First published in the Independent, 17 July 2008.
Picture this. It's Sunday morning. You are just sitting down to read the paper when there's a knock on your door. You open it to find your boss demanding a urine sample there and then to determine what substances you may have indulged in the previous night. Would you be happy to oblige?
On the other hand if you work in a factory all day using complex machinery or for that matter in a kitchen with very sharp knives, would you want the guy standing next to you to have spent his weekend high on P?
The recent Supreme Court decision in which high profile jockey Lisa Cropp challenged the validity of New Zealand Thoroughbred Racing's random drug-testing regime has brought this question into the limelight again.
Cropp was charged in 2005 with two breaches of the Rules of Racing prohibiting any controlled drug from being present in a jockey's system. She had tested positive for the presence of amphetamine and methamphetamine (essentially, the active ingredients in P) following a random drug test after a race meeting.
Cropp challenged the legality of the Rules and the ability for NZTR to conduct tests at random. The High Court held that the purpose of the Rules was to ensure race day safety and that drug testing was an appropriate way for NZTR to achieve this purpose. The High Court also held that the rule requiring random tests was a reasonable limit on a person's expectation of privacy and bodily integrity.
After Cropp appealed to the Court of Appeal and then to the Supreme Court, the Supreme Court has essentially agreed with the position stated by the High Court. In addition, the Supreme Court stated that in order to deter jockeys from taking drugs (and potentially compromising race day safety) random drug testing was necessary to achieve these purposes.
The issue of random drug testing in workplaces is not new. In 2004 Air New Zealand introduced a policy of random drug testing of employees who were engaged in "safety sensitive areas". After a challenge to the legality of the policy in the Employment Court it was found that Air New Zealand was justified in pursuing a safe and healthy work environment by having such a policy.
In the Air New Zealand case, the policy had defined a "safety sensitive area" as an area where employees could, if affected by drugs or alcohol, expose themselves or others to the risk of injury. Some examples were given as being employees working on an aircraft, network logistics, engineering and maintenance bases and managers making safety critical decisions. Similarly, the court suggested that, within Air New Zealand, those working as human resources advisers, in-house lawyers, payroll staff and others may not classify as being in "safety sensitive positions" while pilots, aircraft engineers and flight planners would.
But what other workplaces (and positions) would be considered "safety sensitive"? The question is an interesting (and crucial) one for employers considering making their own drug and alcohol policies.
In the Air New Zealand case, the court indicated the need for positions to be genuinely safety or security critical, for example where public safety is paramount. The "safety sensitive" areas the courts are referring to, therefore, appear to apply when employees are involved in the use of dangerous machinery, or operating within environments in which serious or fatal accidents could occur if there is a lapse in concentration, poor judgment or impairment.
For those of us whose biggest risk at work is a bad paper cut, or possibly falling off our swivel chair, the requirement of random drug testing would seem absurd against this standard.
But what about a kindergarten teacher who looks after 30 under five year olds? Surely a lapse in concentration or impairment there could have as much potential for causing an accident as where someone is wielding a power-tool? What about the concentration required of lifeguards at our pools, pharmacists dispensing our drugs or even our bus drivers who drive us to work?
In the Supreme Court's view in the Cropp case, (and, it would be thought, the opinion of most), racing horses is clearly a "safety sensitive" activity – the judgment pointed to United States cases that noted that two jockeys are killed in the United States every year from racing, and another 100 are injured seriously enough to be disabled for at least one week. The decision should not, therefore, come as any great surprise.
What this all means (and what the courts themselves have noted) is that "safety sensitive areas" may be hard to define. Rather unfortunately in the Air New Zealand case, the court stated that this is for the employer to determine, following consultation with the affected employees (and unions).
This is rather tough ask for employers who are trying to balance complying with Health and Safety legislation – requiring them to take "all reasonable and practicable steps" to provide a safe working environment – while defending claims that they are infringing the rights of employees by imposing a drug testing regime.
Interestingly, the justification used by the Supreme Court to find that random drug testing was necessary for deterrence could apply in any of the hypothetical situations above. In the court's view, jockeys taking drugs up until the day before race day could go undetected until there was an accident and there would be a greater risk of addiction if substance use was tolerated at other times. In other words, "for a jockey who contemplates using drugs, the degree of randomness affects the degree of the risk of being detected, and therefore the effectiveness of the deterrent".
In short, the ability of an employer to require employees to undergo random drug testing must be based on genuine safety concerns, and testing limited to such safety sensitive areas. The question that remains, however, is how many workplaces will meet this threshold?
It seems that random drug testing does have the potential to become an ordinary part of daily working life for those working in safety sensitive jobs. This issue is, however, at the crossroads of two competing interests: the level of infringement of fundamental rights to privacy and freedom from intrusion and what is reasonable to ensure the safety of those in dangerous working environments.
