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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 18765
Experience:  32 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I was asked to do a random drug test at work, I consented to

Customer Question

I was asked to do a random drug test at work, I consented to the alcohol & drug test but I advised I wanted it to be done at either me doctors or at the nzdda office, my employer said it has to be done in the nzdda transit vans onsite outside my office in the general carpark. That was the company procedure and that if I didn't do it in the van that I have refused the drug test which they treat as serious misconduct, I repeated that I consent to the test but not in the van as I believed it breached my privacy. I now have to attend a disciplinary meeting. Am I within my rights to request to do the test with either my GP or at the office of the companies preferred supplier for their drug & alcohol testing and not in a transit van which my work colleagues and general public could see me going in and out of the van, besides being a woman and not comfortable with someone that is not a doctor or a nurse that does the testing.
Submitted: 11 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 11 months ago.

christhelawyer : HiWelcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
christhelawyer : The employer are entitled to establish the standard method of drug testing used in places of employment, and there is no privacy issue, except in relation to the results and any discussions about the results with your employer. They must of course not single you out but this must be done as a random test.
christhelawyer : you are entitled to insist on trained personnel doing the test, which is usually a urine sample. This must be taken in a way which does respect your privacy. It may be that part which is the concern to you of course.
christhelawyer : Trained personnel does not mean someone who is necessarily a registered nurse but someone with appropriate training.
christhelawyer : Whether employees can be tested for drugs in the workplace will depend on a variety of factors. The following are examples of factors that may be taken into account but should not be taken as a detailed guide, as each case will be different.The industry in which they work and the type of work they do.o Whether an employee's work directly impacts the safety of others may affect whether it will be reasonable to drug test that employee. Positions with that potential are more common in some industries than others.Whether there is a potential health and safety risk.o The Health and Safety in Employment Act 1992 places a duty on an employer to provide a safe workplace. This may sometimes justify drug testing. This is more likely to be the case if an employee works in a safety sensitive area, shows signs of being affected by drugs, or has recently been involved in a workplace accident or "near-miss".Privacy considerations.o An employee's right to privacy in relation to personal information under the Privacy Act 1993 and common law may need to be taken into account, particularly when considering sample collection procedures, the method of analysis, and the handling of test results.The effect on basic individual rights.o Relevant laws to consider may include the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 (although the New Zealand Bill of Rights Act 1990 only applies to acts done by certain employers). Even if those laws do not make it unlawful for an employer to require an employee to undergo drug testing they may influence whether the requirement is reasonable.The details of the proposed testing policy o Depending on the circumstances, random testing may be harder to justify than testing of specific employees for specific purposes, for example where an employee's ability to perform their job has the potential to affect the safety of others.The provisions of the employment agreement.o If an employment agreement gives an employer the right to require employees to undergo drug testing then, provided the provision in the agreement is reasonable and does not contravene the protections contained in any relevant laws, it is more likely that the employer will be able to require drug testing. Similarly, it will be difficult for an employer to introduce drug testing if that right is not contained in the relevant employment agreement, unless the employee gives the employer informed consent.If an employer suspects that an employee is using drugs, then as a first step it is advisable for both parties to try and resolve the issue by talking about the problem. If this is not successful either party may choose to seek mediation assistance through the Department of Labour.
christhelawyer : That is a lot of information but please read this and you can follow up.
Customer: I've read all that online prior to just answer, I want to know if my request to do the test in what I considered a private and respectful office which includes a proper toilet, away from general public and not in the back of a vehicle is valid under my human rights or a privacy law?
christhelawyer : I do not know what people have researched, so provide full information.
christhelawyer : But you can insist on dignified and private treatment. Exactly what that is, may be different for individuals. Your employer should recognise not all workers are the same, and ensure that this is reasonably private and done with sensitivity. It is however not a human rights issue, but an issue of treating workers respectfully. If all the workers are required to use this facility, then it must be suitable, clean and private. If in your view it does not meet those tests, on an objective view, then you can refuse. You have offered alternatives, and have consented to those. If they attempt to discipline you over these then, you can take this to mediation.
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 18765
Experience: 32 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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