30 Jun 2016, 10:47

The process of collecting health information can affect both privacy and personal dignity. This is what spurred a man to complain to our office after he was asked for a urine test by his prospective employer.

The man had applied for a job that required employees to pass a drug test. The company outsourced its drug testing to a third-party specialist agency, which was charged with collecting samples and testing them for drugs.

The agency collected his urine sample by having a technician accompany him to the bathroom, then stand behind him while he filled a small cup with urine.  

The man felt that a technician standing near him while he urinated represented a breach of his privacy. He complained to our office.

Health information privacy

We looked at  Rule 4 of the Health Information Privacy Code, which prevents health agencies from collecting information in a manner that is unfair or unreasonably intrusive.

The Privacy Act and the Health Information Privacy Code do not define terms such as “unfair” or “unreasonably intrusive.” Rather, they are defined by the specific facts of the case. With this in mind, we consulted the agency for more detail, as well as reading relevant case law to find how the courts had responded to similar scenarios.

The case law

While the Human Rights Review Tribunal has not yet grappled with urine testing, the Employment Court has in two cases: New Zealand Amalgamated Engineering Printing and Manufacturing Union v Air New Zealand (2004) and  Maritime Union of New Zealand Inc & Others v TLNZ Ltd & Anor.

In the Air New Zealand case, the courts recognised that while urine collection is by its very nature intrusive, this doesn’t mean it is unlawful. Rather, the fairness of the intrusion needs to be determined by the circumstances of the time.

In the Maritime Union case, the Court upheld an employer’s policy of urine testing rather than saliva swab testing, as urine testing was more accurate.

These cases indicate that urine testing is by its very nature intrusive, but it is also sometimes necessary for an agency’s purposes. The onus is on the agency to minimise the intrusion, with the understanding that they cannot completely eliminate the intrusion. 

The agency’s response

The agency clarified that they had followed a “monitored collection” protocol, which involves a technician standing behind the donor in order to see his general arm movements. This is to prevent the donor from introducing an adulterant (such as somebody else’s urine) to the sample.

This differs from an “observed” collection, in which the technician actively watches the donor pass urine.

We found that a monitored collection was acceptable in the context of the circumstances. While it was intrusive, it was only as intrusive as it needed to be to collect the information required and ensure the integrity of that information.

This meant in spite of the intrusiveness, our view was that it was not any more intrusive than it needed to be, given the circumstances of the case. The man was applying for a job where drug use had the potential to pose a health and safety risk, and the manner in which the agency collected the urine was proportional to the impact of not collecting it.  We therefore determined that there had been no breach of the privacy principles, so we closed the file.

June 2016

Medical information –  urine testing –  Health Information Privacy Code; rule 4