OPINION: The purpose of workplace drug testing is obvious; workplaces need to be safe environments, writes Mary-Jane Thomas in Work to Rule.
Drug testing may be a necessity where the employee's ability to do their job impacts on their workmates. In industries such as fisheries, horticulture, transport, and forestry, drug testing has become common.
Recent controversial welfare reforms are raising questions of both the legality and benefits of pre- employment drug testing. In July this year the Government passed the Social Security (Benefit Categories and Work Focus) Amendment Bill, creating three new categories of beneficiaries. These categories replace the "old" benefits such as the domestic purposes benefit (the DPB), and unemployment benefit, with the focus of the benefit now directed towards finding work.
The changes also prescribe new rules around drug testing. Beneficiaries who qualify under the categories as having to look for work are required to undergo drug testing, should the employment application request it. Before the reforms, beneficiaries could refuse to participate in a drug test and not face penalties.
The drug-testing requirements are accompanied by further "social obligations" under the reforms, with beneficiaries who are parents being required to enrol their child in early childhood education or have their benefits reduced.
Sidestepping the political debate of whether the new drug-testing requirement is going too far, the legality of the new scheme has raised some eyebrows. Privacy Commissioner Marie Shroff has said the new rules subjecting beneficiaries to drug testing are potentially illegal. There is no law that provides for nor prohibits workplace or pre-employment drug testing, however.
An interviewing employer has no restrictions on whom they subject the test to, when this drug test can take place - that is, of course, because the applicant for the job can refuse to be tested. This is different from drug testing employees in the workplace. The Employment Relations Authority has demonstrated in its decisions that the drug-testing procedures need to be clear. Staff need to know how the test will be carried out, and the disciplinary procedures should they fail the test.
Employees have in some cases been able to claim damages (in one case $15,000) from their employer for unjustified dismissal where it was unreasonable for the employee to be drug tested. A harsh result for employers who want a drug-free workplace? Maybe.
The potential danger with the recent reforms is the discrimination that could occur. For example, if a position comes available with applications from outside and inside a business employer's may choose to test only Winz beneficiaries and not other applicants who are applying for the position - is this fair? Maybe it is. Further, unlike an employee who feels they have been treated unjustifiably and can pursue a personal grievance against their employer, there is no avenue of redress for an applicant for a job.
Quite significantly, according to Winz, beneficiaries will not be sent to apply for jobs that require drug testing if Winz knows that the beneficiary is dependent on drugs, undergoing or waiting on medical treatment or taking prescription medication that would cause the beneficiary to fail a drug test.
This undoubtedly allows a wide discretion for the person processing the application to decide whether or not the beneficiary is dependent on drugs, or a "recreational" user. The concern of the Human Rights Commission is that this is a fine line (and it probably is).
The ministry disagrees that the reforms breach the human rights of beneficiaries. Both the Justice Minister and the New Zealand Law Society opposed the passing of the bill.
The workability of these controversial reforms will be interesting to watch.
» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to email@example.com.
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