Lyttelton case highlights risks of health monitoring by employers
Monitoring workers’ health can sometimes amount to stepping over a line.
That was the finding for Lyttelton Port Company when the Employment Relations Authority (ERA) agreed with the Maritime Union of New Zealand that a test of workers’ physical health was going too far.
The logistics company had introduced the test following the death of a stevedore in 2022.
But because the port had not sought the workers’ consent about a test, or changed the collective employment agreement with the union, the ERA came down on the union’s side – even though the employer had consulted with the Transport Accident Investigation Commission when developing the health assessment.
Health tests in the workplace
In workplaces that require quick reflexes and muscle, or where workers are exposed to toxins, health tests make sense. But Dentons employment partner Greg Cain explains that employers must adhere to a few protocols if they seek to mandate these kinds of tests.
“Generally speaking, if the nature of the work requires a particular type of testing, then that should be justifiable – although there are certain limitations,” Cain said. “If you’ve got the evidence to back up the asserted need for the screening or testing, if the medical evidence backs it up, then you should be able to do it. You just need to consult with the workforce first.”
For some jobs, health tests are regulated in the WorkSafe New Zealand Act. It may involve monitoring for certain types of hazardous substances, in the case of workers exposed to asbestos, lead or certain gasses, for example.
“If the exposure is over a certain level, the employer has to monitor your health,” Cain said. “That’s specifically required by law. Generally, if you are working with a risky substance you are going to be covered by that.”
For some jobs, a certain level of physical fitness is required.
“You might be able to make a case that a physical fitness test is needed,” he said, suggesting as an example baggage handlers who hoist 23kg suitcases day and night.
“There is probably a whole range of occupations where you could justify, on a medical basis, having some sort of medical screening or testing to establish somebody has the physical ability to carry out the job.”
Full disclosure in employee health tests
Testing can be fraught if there is any ambiguity involved. Can a worker be sure the test will only detect what the boss claims it is designed to find? Cain said it’s on the employer to stay within guidelines.
“If you’re doing a urine test or a blood test, then the employee, of course, doesn’t see the lab carry out the test and doesn’t see what results it produces other than what the employer reports back,” he said.
“Those sorts of testing regimes require very detailed policies that require the employer to appoint a reputable provider who carries out the tests in a certain way and ensures proper chain of custody and that the results are reported back in a certain way.”
Policies that cover testing have become prescriptive, he said, “because employees want to be sure they are not being tested for other things, or that [a test] has been used as an excuse to get rid of an employee the manager doesn’t like.”
Steps to devising physical health test
How should an employer of active workers, in this case not covered by a collective agreement, decide on a regime to test their physical health? Cain suggests some steps:
- Get advice to establish that for the sorts of movements the workers do, they need a certain type of flexibility, strength and cardio fitness.
- Seek expert advice on how to test for those levels of flexibility, strength and cardio fitness and how often.
“You’ve got to be careful that with whatever regime you introduce, not to do it in a way that’s discriminatory,” he said. “Some people might have a particular health condition, or it might potentially discriminate against people on the basis of age.”
However, if above-average physical condition is a genuine requirement to the role, it won’t be discrimination. To take the safe route, he said, make such assessments a part of recruitment.
“It’s a lot easier at that stage, because the [applicant] is not an existing employee and they don’t have contractual rights.”
Including new health test in agreement
In the case of workers covered by a collective employment agreement, the introduction of a new type of testing that’s disadvantageous to the employee requires consent, not just consultation, and a change to the collective agreement.
“If you don’t have a collective, or the collective doesn’t stop you doing it, then, as a rule, if it’s required for the work itself, that will be fine,” Cain said.
“You’ve just got to establish there are grounds for having it.”
