Random drug and alcohol testing: what is a ‘safety sensitive’ workplace?

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.

In the leading Air New Zealand case (2004), the Court termed random testing ‘suspicionless testing’ and held that the arguments presented in that case which led to its finding that an employer could lawfully introduce a drug and alcohol policy:  “…do not apply with the same force so as to describe as reasonable the random or suspicionless testing of all employees and cannot justify the random testing of employees working outside safety sensitive areas.”

In a later case, Maritime Union of New Zealand Inc v TLNZ (2007), the Employment Court accepted that employees working within wharf limits were in safety sensitive areas and could be subject to random testing.

However, until recently there has been little other guidance as to what comprises a ‘safety sensitive’ area of work or position.

Last month, the Employment Relations Authority determined a claim brought by an employee of Mighty River Power, who had declined to undergo a random drug and alcohol test.  The Electrical Union sought a declaration that the company’s drug and alcohol policy, which allowed for random testing, breached the terms of the collective agreement and that agreement was required for the employees to submit to random testing.

The employee in this case worked at the Geothermal Power Station at Kawerau.  In considering whether his role was ‘safety sensitive’, the Authority summarised the operations as extracting geothermal steam from a reservoir deep underground, with very high temperatures and pressures being involved.  The energy in the fluid is converted into electricity either by being used in a turbine to turn a generator at a very high rpm or by being used in an energy converter to heat up high volumes of highly flammable material.  As an acid injection system was used on site, large volumes of sulphuric acid are stored.

The Authority accepted that the exposure to hazards and risks on this site was high and the consequences of an accident or incident could be catastrophic, finding that the company was entitled to determine that the whole site was ‘safety sensitive’.  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.

Electrical Union 2001 Ltd and Cowell v Mighty River Power Ltd [2012] NZERA Auckland 375

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4 Comments

  1. In all levels and areas of employment, employees are entrusted by their employers to undertake an agreed service and various duties. There are currently many employers around the world who require prospective employees to undergo a pre-employment drug test, and some organisations mention the potential for random drug testing in employment contracts and codes of conduct.

    A ‘safety sensitive’ working area is an area where if a role is carried out wrongly by an employee, then harm could potentially be inflicted upon the employee, customers and fellow colleagues. According to Joseph Desjardins and Ronald Duska it is only right to test an employee in exceptional cases where the knowledge of drug use would prevent harm and where ‘probable cause’ exists for believing an employee poses a threat. Furthermore, there must be a ‘clear and present danger with reference to job type’ (Desjardins, J. & Duska, R.).

    Employers in New Zealand are unable to assume that drug use is linked to employee productivity. A drain on productivity is an argument made by some employers; however, they need to tread carefully as the measurement of performance is impossible to link with the use of illicit drugs. All employees are expected to perform their duties to an acceptable level, however, the level of performance is not necessarily discussed as employers can’t expect an optimal level from their employees at all times.

    The use of drugs and job performance tends to be person related. For example, there may be regular users in an organisation whose drug use goes unnoticed for various reasons; there could be others where the usage is detected far more obviously. “Drug use by very talented people may diminish results; however, their results may still be better than the average or unskilled person” (Desjardiins, J. & Duska, R.).

    Not all roles in an organisation would pose a serious threat if drug use was present, e.g. teachers, general administrators or office workers. However, for an organisation to be successful it is vital that their employees remain drug free, as they are all trying to achieve the same common goal. It is important that all employees are treated fairly and equally, there should be a collective drug free policy where everyone clearly understands the rules of the organisation.

    Employers are liable for any harm caused by their employees to customers or fellow employees, so it is important that they are aware of issues that could prevent harm as they have a moral duty of care. The introduction of random drug testing may miss the chronic users and target the innocent employees; this can potentially cause a negative working environment for all involved and may also diminish productivity as employees would see it as a ‘breach of trust’ (Open Polytechnic, Drug testing in the workplace).

    The main argument by opponents of drug testing is that employees have a right to privacy and what occurs outside of work hours is in fact private. An employer could avoid violating ones right to privacy by including a clause in all employment contracts which outlines the potential for random drug testing in all areas, not just ‘safety sensitive’ ones. This would be gathering ‘informed consent’ from the employee (Open Polytechnic, Drug testing in the workplace). Furthermore, it would help for the employer to clearly outline all specific requirements from the beginning. A probationary period could also be agreed upon as this will help to limit the employer’s potential risks and it will ensure that they can monitor performance more effectively.

    Under Kantian moral theory, privacy is seen as fundamental to all rational human beings. By breaching ones right to privacy in an instance of illegal activity, e.g. the use of drugs, this may be seen as acceptable if there is a clear and present prevention of harm to others. However, this may be difficult to will into universal law as one’s right to privacy may become null and void. The possible maxim of that action would be ‘I will breach one’s right to privacy if their use of drugs affects others negatively’.

    There are many less intrusive and more direct methods an employer could use to monitor employees they suspect of drug use. Some of these include dexterity tests, driving or flight simulators, behavioural, psychological and memory related testing. These tests can be undertaken by a trained technician efficiently and cost effectively, as drug testing is generally far more expensive. For employees in a potentially ‘safety sensitive’ area, there would be more benefit in testing them with these methods as results are returned faster. This would avoid the time lapse factor where drugs can leave the system; however, if a large amount of a drug is present in an employee’s system, this would be fairly obvious without the need for testing.

    Finally, the debate about whether employers should introduce random drug testing will likely continue for many years to come, it is a very sensitive topic where opinions are heavily divided. I believe that by advising an employee from the beginning that random drug testing may be required in all areas, not just ‘safety sensitive’ ones, could deter many casual users and hopefully avoid any issues occurring during their employment.

    References:
    Desjardins, J., & Duska, R. (2001). Drug testing in employment. In T.L. Beauchamp & N.E. Bowie (Eds.), Ethical theory and business (6th ed., pp. 283-294). Upper Saddle River, NJ: Prentice Hall.

    Open Polytechnic of New Zealand. (2012). Module Two. 71203, Business Ethics, Drug testing in the workplace, p.10, 13. Lower Hutt, NZ: Author.

    Reply

  2. Petra Taylor 22 May 2013 at 8:07 am

    There is no particular law relating to employers drug testing employees in the workplace. Legislation states that it will depend on different factors; and that each case should be examined separately, as they are all different.

    Factors that should be considered before drug testing employees are; the type of work that the employee does and wheather or not it can put themselves, or others, in danger if their working ability is impaired by the use of drugs. The Health and Safety in the Employment Act 1992 (HSE) states that an employer must take all practicable steps to ensure the safety of employers, in the workplace – especially in safety sensitive areas.

    Employers need to be careful about the way the tests are carried out; especially the way they are collected and the way the results of the tests are managed. Otherwise they may be in breach of the Privacy Act 1993. Time should be spent at looking into the company policy on drug testing within the workplace. It may be easier for an employer to target one person for a drug test or they may find it easier to justify random drug testing for the whole firm. I suggest all employers add a drug testing clause to their employment agreement and prepare a drug testing policy, if there isn’t one it could make it harder for an employer to legally obtain a sample from a drug test
    .
    So referring back to the first point you made that ‘random drug testing of employees for drugs or alcohol is only justifiable when they work in safety sensitive areas or roles’ is not entirely correct. It is a big factor for employers looking to drug test, yes, however there may be other circumstances which make the option to drug test the only option there is for an employer. For instance an employee may be acting dangerously and obviously be impaired due to the use of drugs and when asked to leave the premises refuse to do so. A drug test may be an option here even if the employee works in an office (for instance) where they can’t cause any real harm to themselves or others.

    The Air New Zealand case (2004) and then at the later case, Maritime Union of New Zealand v TLNZ (2007) we can see that both cases had trouble defining what a ‘safety sensitive’ area or role is. I agree with you when you say that recently there has been little guidance as to what comprises a safety sensitive area. It appears that there may need to be further definition of this term as we start to see more employers opting to drug test within the workplace. New Zealand Drug Detection Agency (NZDDA), New Zealands only fully compliant AS/NZS4308:2008 International Accreditation New Zealand (IANZ)-accredited on-site drug and alcohol testing provider, reported an increase of on-site workplace drug screening by 31% in 2012, this is after a 77.7% increase from the previous year.
    NZDDA’s chief executive Chris Hilson said; “The rise in the number of on-site workplace drug and alcohol tests in 2012 illustrates that many more employers are taking workplace safety very seriously. Most of our testing takes place in the safety-sensitive sectors such as forestry, transport and construction – sectors in which it’s vital for employee safety but also for their customers and suppliers and, in some cases, the general public. There’s no second chance if there’s any impairment from drugs and alcohol in those workplaces.”http://www.scoop.co.nz/stories/BU1303/S00367/on-site-workplace-drug-screening-increases-31-in-2012.htm
    Referring back to the HSE again it doesn’t define what a safety sensitive area is, but it does list the definition of hazards being; an activity, occurrence, arrangement, phenomenon, circumstance, process, event or situation. These explanations will help employers decide if the employee in question works in a safety sensitive area or not. Looking at recent cases, it seems to be that if the drug testing can be reasonably justified to protect the safety of employees then it is generally ok to perform the drug test.
    The act can also be interrupted that employers don’t just have the option of introducing a drug testing policy but that they are actually required to do so. If there is any sort of accident in the workplace and it is found that an employee was involved that was under the influence at the time then there could be serious consequences for the employer if they didn’t have adequate drug testing policies in place.
    As I have been browsing the internet and publications it seems apparent to me that employers are using drug testing as a way of increasing productivity within the workplace, as well as the safety levels.
    Micheal Cranford (as cited by Beauchamp & Bowie, 2004) believes that an employer is entitled to drug test employees. Both parties have signed a contract and the basis of that contract is for the employee to be productive and efficient to get work done and in turn the employer pays them a wage. He states that drug testing is to be both efficient and specific because it doesn’t include any information that is irrelevant (pg. 229). He feels that it is similar to the other types of processes that employers use to gather information about the effectiveness of their employees. It gives employers information about employees that may be causing them to be less productive than they ought to be.

    References:
    http://www.osh.dol.govt.nz/order/catalogue/hseact-text/index.shtml
    http://www.scoop.co.nz/stories/BU1303/S00367/on-site-workplace-drug-screening-increases-31-in-2012.htm
    Collins English Dictionary
    Open Polytechnic of New Zealand. (2012). Module two. 71203, Business Ethics, Drug testing in the workplace, p.10. Lower Hutt, NZ: Author

    Reply

  3. You ask the question, ‘What is a safety sensitive workplace?’
    The Health and Safety Employment Act 1992 places a duty on an employer to provide a safe workplace (Department of Labour) to all employees, so when determining whether an area or role is to be considered ‘safety sensitive’, you need to think whether the employee performing the task could directly impact the safety or pose a risk of harm to not just themselves but customers and other employees within the workplace.

    According to the U.S. Department of Labor, more than 17 million people over the age of 18 were illicit drug users in 2007, and more than 75 percent were employed at the time. Impaired judgement can result in slow reaction times and misguided decisions while working, which can lead to accidents.

    The department of labour actually states that ‘there is no specific employment related law that deals with drug testing in the workplace’ but there are a few factors that need to be considered for every case before the employees can be drug tested.

    These factors include the following:
    – Industry and type of work they do
    – Potential Health & Safety risk?
    – Privacy Considerations
    – Effect on basic individual rights
    – Proposed testing policy
    – Provision of employment agreement

    Employers need to consider whether a particular drug testing regime is an efficient and morally acceptable means of promoting safety (Open Polytechnic, Drug Testing in the workplace).

    As you state, it is legally justifiable to conduct random drug tests if the employees are working in a safety sensitive zone where if their standard of work deteriorated due to the use of drugs there could be a potential risk of harming people.

    Random drug testing can have its positives and negatives for both the employee and employer.

    For Employers, random drug testing can reduce accidents from happening by being able to pick up drug use early, this could prevent harmful mistakes caused by drug impaired staff from happening in the first place by firing or disallowing the employee to no longer work in such safety sensitive areas or roles.

    For employees, knowing that there is a drug testing system in place may make them more productive as there is no need for them to worry about others that may make drug impaired hazardous mistakes. On the other side, employees also have the right to privacy and drug testing involves the collection, storage and gives the end user the use of personal information about the employee and their doings outside of work hours. But the provisions in the Privacy Act 1993 mean employers can collect personal information (including test results) only for a “lawful purpose” connected with their functions or activity and the collection must be “necessary” for that purpose.

    Reply

  4. You ask the question, ‘What is a safety sensitive workplace?’
    The Health and Safety Employment Act 1992 places a duty on an employer to provide a safe workplace (Department of Labour) to all employees, so when determining whether an area or role is to be considered ‘safety sensitive’, you need to think whether the employee performing the task could directly impact the safety or pose a risk of harm to not just themselves but customers and other employees within the workplace.

    According to the U.S. Department of Labor (as stated on Chrons website), more than 17 million people over the age of 18 were illicit drug users in 2007, and more than 75 percent were employed at the time. Impaired judgement can result in slow reaction times and misguided decisions while working, which can lead to accidents.

    The department of labour actually states that ‘there is no specific employment related law that deals with drug testing in the workplace’ but there are a few factors that need to be considered for every case before the employees can be drug tested.

    These factors include the following:
    – Industry and type of work they do
    – Potential Health & Safety risk?
    – Privacy Considerations
    – Effect on basic individual rights
    – Proposed testing policy
    – Provision of employment agreement

    Employers need to consider whether a particular drug testing regime is an efficient and morally acceptable means of promoting safety (Open Polytechnic, Drug Testing in the workplace). As you state, it is legally justifiable to conduct random drug tests if the employees are working in a safety sensitive zone where if their standard of work deteriorated due to the use of drugs there could be a potential risk of harming people. Not all employees need to be included in the regime. You may decide to leave out those employees whom you believe have no intention of using drugs or have such good history that there is no need for them to be drug tested.

    Random drug testing can have its positives and negatives for both the employee and employer.

    For Employers, random drug testing can reduce accidents from happening by being able to pick up drug use early, this could prevent harmful mistakes caused by drug impaired staff from happening in the first place by firing or disallowing the employee to no longer work in such safety sensitive areas or roles.

    For employees, knowing that there is a drug testing system in place may make them more productive as there is no need for them to worry about others that may make drug impaired hazardous mistakes. On the other side, employees also have the right to privacy and drug testing involves the collection, storage and gives the end user the use of personal information about the employee and their doings outside of work hours. But the provisions in the Privacy Act 1993 mean employers can collect personal information (including test results) only for a “lawful purpose” connected with their functions or activity and the collection must be “necessary” for that purpose.

    Reply

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