Before starting any Drug test the donor must give informed consent.

We are getting more and more challenges around drug testing, this is due to miss guidance by individuals claiming to be experts when the old saying “a little knowledge is dangerous” should really be taken into consideration.

The days of HR and Health and safety consultants down loading templates or copying another company’s policy are gone, short term savings have now the potential to become very costly, you know you are in dangerous territory when even some employment lawyers can’t seem to get this correct.

As one of the pioneers in onsite drug testing there has been a lot of changes since we started, two of the major influences have been the 2004 Air New Zealand case law and the introduction of the AS/NZ 4308:2008 standards, both have had a major impact in regards to the policy and testing, this has been done to insure that the employee has a clear understanding of requirements and outcomes, and the employer has a duty and obligation to all employees that it is a fair, reasonable and reliable process and that the Health and Safety in Employment Act is the purpose of testing. This means that the process has to withstand evidential scrutiny whilst taking into account, the Bill of Rights Act, Privacy Act, Employment Relations Act, Human Rights Act, and still insuring this is done to the standards.

Any Company that is conducting on-site testing who is not testing to the standard should inform the donor that this is not in accordance to the standard. The Donor can then make a informed decision based on the information provided.

Informed Consent Law and Legal Definition. Informed consent is generally agreement to do something or to allow something to happen only after all the relevant facts are disclosed

One of the big misconceptions is IANZ- The standard stipulates that the company must be accredited. Accreditation can only be obtained after IANZ has assessed the company against international standards including NZS/ISO 15189:2012- registered under the testing Laboratory Registration Act 1972 as an Accredited Laboratory – this takes into account – Compliance with ISO management systems, Technical validity of methods, Competence and experience of staff, Validity and suitability of results and integrity and tractability of equipment and materials, this is what will give testing and the procedures the ability to withstand scrutiny in the employment court.

This also gives clear direction on what is acceptable for donor identification, when controls need to be done and best practice always lifting the bar by recommendations and insuring that these have been implemented, something that even those involved with the standards seem to struggle with or try and over complicate. . 

This is also the biggest misconception with even experts not getting this correct- if your policy states that you are testing to the AS/NZ 4308:2008 standards as it should, and the company who is performing the testing is not accredited then you are not testing in accordance with the company policy,

With the donors now becoming more aware of what the legal requirements are for testing we are seeing more and more challenges and we will start seeing more employers in court and on the wrong end of the judgement.

The first thing the lawyer will look at is the policy, this has to be followed to the letter and where nearly all cases are lost, they will then look to insure that it is fair and reasonable, with even wording such as will and may taken into consideration.

We have seen hundreds of policy’s over the years, from company’s thinking a paragraph in an IEA will cover them, to a comprehensive book, down to procedure of removing footwear, some good ones and some that we have had to refuse to go through with testing.

The most common questions that seem to be always discussed are, with or without pay, deduct pay or holiday once results come in and rehabilitation being the bone of contempt for most employers.

A couple of other interesting ones we have had recently are :

Employees refusing to do Client requirement (part of on-site requirement for some principle companies), this has in the past been put under Pre-Employment that can be confusing in itself, but donors are now stating that their company does not allow for this so not part of their contract with their employer. 

Not refusing the test but not willing to sign anything.

These are just a few.

We have been working closely over the last 18 mnths with employment lawyers including some who have been involved in recent case laws and EMA on how we can insure we can close these loop holes, aligning the policy with procedures, standards and law. 

For more information on who the experts are we can point you in the right direction.