Employers who continue to use urine testing as an only option for workplace drug testing may be breaking the law, First Union lawyer Oliver Christeller says.
First Union represents more than 28,500 New Zealand workers including many in the transport industry.
The advice comes following the establishment of a NZ standard for oral testing in March this year.
Oral testing is a less intrusive measure and has been proven more effective to determining impairment at work over urine-based testing, the union says.
Before the new standards, the courts determined it reasonable for employers to use urine testing where a standard has existed for some years.
Christeller says now that there’s an approved standard for oral testing, companies who do not move to this testing method are potentially in breach of the Privacy Act 1993.
“Principle 4 of the Privacy Act 1993 prevents companies from collecting information in a way that is unreasonably intrusive.
“I think it is fair to say that requiring someone to give a sample of their urine as opposed to simply providing an oral sample of saliva, is unreasonable given there is now an accredited standard for oral testing,” Christeller says.
The main issue is that drugs such as cannabis can take up to 24 hours before they are traceable within a urine sample, well after the period that impairment has worn off.
The fast-developing technology behind oral testing means there is now testing equipment available that can accurately determine presence of the drug during the impairment period without detecting previous traces from historical use.
A Fair Work Australia decision in 2012 stated: “Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance.
“This means that a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely.
“In the circumstances where oral fluid testing, which does not have this disadvantage, is readily available, I find that the introduction of urine testing by the applicant would be unjust and unreasonable,” the decision stated.
“There are concerns that some employers use urine testing as a way to target workers they want to get rid of for reasons other than impairment or health and safety reasons. A lot people do not realise that these testing agencies are for-profit companies that have an incentive to find drug use, even where it may not be within the scope of employment,” Christeller says.
The union is currently going through a process of reviewing existing companies’ policies and engaging in a process to have them amended accordingly.
