Can I drug test employees?

Testing for drugs in the workplace is often undertaken because of health and safety issues in relation to the employee concerned, or in relation to the health and safety of other employees or members of the public. There are three main types of drug testing you might consider:

1. Compulsory testing (for example, at the pre-employment stage);  
2. Testing for cause (for example, where there has been an accident or a near accident in the workplace);
3. Random testing

Workplace drug testing can be a difficult process to undertake. It includes a range of legal hurdles that an employer must consider. Drug testing involves the collection, storage and use of information about employees, so you will need to consider the Privacy Act (there may also be issues in terms of employment law or under other pieces of legislation like the Bill of Rights Act).

The more invasive the type of drug testing, the stronger the justifications will need to be for its use. The reason for testing and the frequency of testing are also highly relevant when deciding whether testing is reasonable and appropriate.

For example, it is easier to justify drug testing for staff working in areas where safety is a real issue (for example, public transport, or operation of heavy machinery). It would be much more difficult to justify testing office workers. Testing for a specific reason, following an accident, for example, is much easier to support than random testing.

Before instituting drug testing you should:

• Consider carefully whether there is, in fact, a drug problem in your workplace;

• Assess the nature and extent of the problem;

• Be certain that the drug taking could impair an employee’s ability to work and that they are a safety risk to themselves and/or others; and

• Consider whether drug testing is the most effective way of dealing with a suspected drug problem. There could be a less intrusive alternative that may be just as or more effective, such as supervision, a drug education programme or confidential counselling service.

If you do decide to undertake drug testing in your workplace, you must ensure employees are aware of:

• The purpose/s of the drug testing;

• How often it will happen;

• The consequences of refusing to undergo testing;

• Who will see the test results (and any information associated with the test);

• What will happen with the information – where the information will be stored and for how long, and if it will be eventually destroyed; and
• What will happen if the drug test is positive.

Employees are entitled to complain to the Privacy Commissioner if drug testing doesn't comply with the privacy principles (in particular, principles 1,3 and 4), and the employee has been adversely affected by this.