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Alert24 - Safeguard Update

Urine testing 'breaches privacy'

Urine testing 'breaches privacy'
Article Type:
News
Publication Date:
2013-07-26
Jurisdiction:
New Zealand

A legal opinion suggesting that the collection of urine specimens for workplace drug testing may breach employees' rights has provoked strong reactions from both union and employer groups.

An article posted on the website of Wellington law firm Chen Palmer says that, in light of recent case law, urine testing may contravene the Privacy Act because of its intrusive nature, and because it provides evidence of historic drug use in which the employer can have no legitimate interest on health and safety grounds.

The article cites a 2012 Australian employment court ruling, Endeavour Energy v CEPU, in which a union representing electrical workers won the right to have workplace drug tests conducted on saliva samples rather than urine.

The matter was last tested in New Zealand courts in 2007, when the Maritime Union challenged the drug policy of stevedoring company TLNZ Ltd. The court found in favour of the employer, agreeing that mouth swabs did not, at that time, provide sufficient accuracy.

However the Endeavour Energy ruling has subsequently won some support in this country, with the judge in a recent case that dealt with other aspects of drug testing - Hallyar v The Goodtime Food Company - noting that, in his opinion, the Australian decision was equally applicable here.

Chen Palmer says another 2012 case, in which a woman successfully sought damages from her boyfriend's flatmate after he secretly filmed her taking a shower, has redefined the tort of privacy by ruling that any unreasonable intrusion into a person's seclusion may be a breach of the Privacy Act. This has implications for employers, the article says, as employee complaints about the collection of drug test samples mean such collection methods could be regarded as actionable intrusions.

"Employers may have a battle on their hands if they wish to retain urine tests for drugs," the article concludes. "Policies will need to be updated in line with developments in the science of testing. If less intrusive testing methods become available it makes the use of more intrusive methods unreasonable and possibly actionable."

EMA (Northern) occupational health and safety manager Paul Jarvie describes the Endeavour Energy decision as "unfortunate", pointing out that while there is a lot of research supporting the accuracy of urine testing, saliva tests are regarded as less scientifically robust. He fears that a similar court ruling in New Zealand would make it difficult for companies to fulfil their obligations to provide safe workplaces.

"The courts say you can't do this and then they say that workplaces are unsafe. It puts employers in an invidious position."

Jarvie says employers don't use drug testing lightly, but do it to protect other workers. "I don't think urine testing is particularly intrusive when you compare taking a vial of urine to sticking something in your mouth."

He also rejects claims that urine sampling may result in employees being unfairly penalised for historic drug residues. "The test is measured against a threshold, defined by the Standard, and anything below that comes back as a false positive. The threshold has been set as the same level as drink driving, so are the critics saying they want people at work who are legally incapable of driving vehicles?"

NZCTU president Helen Kelly says debate about drug testing methods does nothing to address the real issues associated with workplace impairment.

"Many employers rely on testing as their sole response to health and safety around impairment, but our approach is that all impairment is dangerous and should be identified and managed. This includes problems associated with tiredness, weather, lack of training, and inexperience, as well as drugs."

Employers devote time and money to drug testing but pay little attention to the management of other impairment issues, she says. If testing must be done, saliva does have advantages over urine tests, however.

"A change to saliva testing would resolve two of the three issues we're concerned about - the accuracy of impairment testing, and the intrusion issue - but it won't resolve the big issue, which is that all impairment should be handled with as much stringency as this one.

"We don't want workers being impaired, but our preference is that that's managed in a way that trusts workers, and random drug testing without just cause is a very low trust model."

People Mentioned:
Paul Jarvie; Helen Kelly
Organisations Mentioned:
EMA; Chen Palmer; NZCTU
Reference No:
130726CA-3298

From Alert24 - Safeguard Update

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