Hi Craig. WorkSafe's website suggests this question is part of a risk assessment: What is the risk of COVID-19 infection and transmission in the work environment when compared to the risk outside work? (equal to outside work = lower risk; higher than outside work = higher risk).

I'm struggling with the question frankly.

Here's an Australian take on the issue: https://www.mondaq.com/australia/health-safety/1032718/can-employers-make-the-covid-19-vaccination-mandatory?email_access=on

Perhaps a little of topic, but not entirely. I've recently had to look into "Chain of Responsibility" offences under the Land Transport Act. This is the idea that liability for commercial road safety offences are not necessarily solely limited to commercial drivers or transport operators. NZTA and the police can look to all parties in the supply chain and prosecute for those who have contributed to certain breaches (speed, gross weight limits, log books).

Last year in Australia, their transport law equivalent was amended to account for the Model H&S Law. The net effect was to move from an incident based approach to a pro-active H&S approach, with hefty fines to sheet home deterrence/encourage compliance. For my money, we'll be likely to follow the Australians in time - there are good reasons to do so (although you may see it differently if you're in the transport industry). Linking the HSWA framework with road safety offending would certainly be 'doing something different' which is the direction the Associate Minister is driving the road policy (pun half-heartedly intended).

I suppose the straddles the fence - both a fix the driver, and fix the environment approach. I've linked my brief paper for anyone who is interested.

Hi Albert, only where the contractor is an individual

Thanks Sharyn and Andrew. I'll continue my hunt. I've found some cases in the UK that touch on this, but nothing immediately useful.

Thanks CK, really useful. Is there a lab that can complete confirmatory oral fluid testing in NZ?

Hi Chris, I do not think that a footpath is a workplace for a local authority unless work, in more than a transitory sense, is being carried out on it so s37 is out.

For the same reason, I would disagree that s42 would apply to Lime as it is confined to plant that is used or could be reasonably expected to be used at a workplace. Again, the definition of workplace in s20 and the District Court's comments in the Athenberry decision do not sit tidily with a footpath as a workplace.

I think Peter and Greg have hit the nail on the head in responding to my original post - interesting, but a bridge too far!

I think this is answered by Peter's point. The focus is not on legality, but actual impairment (or perhaps better expressed as the 'risk of impairment').

From an employer's perspective, managing the risk of impairment avoids getting into an argument about actual impairment at the time of testing (for drugs, alcohol is more cut and dry). Unions are likely to see this differently, and argue actual impairment should be the standard, and it is not for an employer to enquire into the worker's activity outside of the workplace.

For my money, I think the Employment Court will take its lead from the Fair Work Australia decisions of late (as it had signalled back in 2012 in the Hayllar v GoodtIme Food Co case). Where there has been an advance in field of oral fluid testing - which those companies who are invested in urine testing will surely dispute - it may be more reasonable for an employer to require a OF test to screen for the presence of common drugs that more reliably indicate actual impairment at the time of testing.

My understanding is that even with the recently released oral fluid testing A/NZ standard, there's not yet an accredited lab in NZ? I'd be grateful if someone in the know could correct me if I am mistaken.

I also recall that the expert evidence that has gone before the Employment Court previously was to the effect that you cannot, say, screen with an oral fluid test, and confirm with a urine sample. My understanding is that the two tests are not compatible.