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Ask our specialist – Pre-employment checks – what can you ask?

Ask our specialist – Pre-employment checks – what can you ask?

Can an employer request a job applicant undergo a pre-employment medical?

Our Specialist Says:

Yes – you can do a pre-employment drug test on any potential employee so long as they are not an employee when you test them.

Under law, both employer and employee have a duty to ensure that the workplace is safe. It is your responsibility to provide employees with the highest level of protection from risks as is reasonably practicable. This includes the dangers that can arise from drug and alcohol use in the workplace.

Pre-employment testing.

In safety sensitive workplaces, pre-employment testing can be used to manage alcohol and drug risks within the workplace. It is best to state in the job vacancy ads that there will be pre-employment testing, but it is not mandatory. However, advising that there is likely to be a drug and alcohol test before an offer of employment is made, will help make sure that potential employees are aware of your policies from the start.

When pre-employment alcohol and drug testing is being used, it is a good idea to wait until the results have been completed before making the offer of employment. There should be a clean drug test result before a job offer is made, rather than making a clean drug test a condition of a job offer which has already been made and accepted.

Employee testing.

Generally, an employer may only require employees to submit to alcohol and drug testing if this is a condition of their appointment and recorded in the employment agreement. Employees have to follow all legal and reasonable requests from their employer. However, whether it is reasonable for an employer to require an employee take a drug test depends on several factors – Drug testing may be necessary to protect the safety of employees, but could also be considered an intrusion into their privacy. This is why it is important to specify in an employee agreement that drug testing is part of the company policy.

Some reasons to drug test employees:

  • Safety considerations. It may be reasonable to drug test if it is done with the intention of protecting the safety of your employees or the general public.
  • Random versus specific testing. Testing specific employees for a specific purpose may be more reasonable than random ‘suspicion-less’ testing of all employees.
  • Employee rights. Employee’s right to privacy under the Privacy Act 1993 may need to be considered; as well as their rights under the Human Rights Act 1993.
  • Employment agreement or workplace policies. If your workplace is safety sensitive, then a term in your employment agreements of workplace policies which allows for drug testing will make it more reasonable when requested.

This is an extremely complex area. Should you require any assistance, please do not hesitate to contact our advice team on 0800 675 700.

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