Oral drug testing v urine testing

Three million working days are lost in Australia each year due to alcohol- and drug-related issues, according to a 2007 media release issued by the Australian Psychological Society. Employees affected by alcohol or other drugs may present a safety risk, and employment of best drug testing practices is vital for effective and efficient functioning of organisations. However, the most suitable method for workplace drug testing still remains debated.

There’s no ‘one size fits all’ solution to choosing a workplace drug testing program, said Steve Korkoneas, National Operations and Technical Manager, Medvet Laboratories.

In the last issue of Safety Solutions magazine, we covered two workplace drug testing cases - Shell v the CFMEU in 2008, and Caltex Australia v the AWU in 2009. In this issue, Medvet provides some extracts from the most recent Australian court case on workplace drug testing.

Holcim Australia v Transport Workers’ Union of New South Wales (TWU)

On 23 December 2010, the NSW Industrial Relations Commission (IRC) handed down a decision regarding the use of oral fluid (saliva) or urine for workplace drug testing.

Background

In 2007, cement supplier Holcim Australia (a provider of ready-mix concrete) introduced a new urine drug testing regime. On behalf of 140 NSW contract drivers, the NSW branch of the TWU opposed the system and proposed the use of oral fluid tests using saliva swabs.

The union argued that oral testing was less intrusive and more convenient than urine sampling, and that oral fluid more accurately reflected recent drug use and the consequent risks of drug users driving vehicles.

Commissioner’s decision

Privacy

The issue of individual privacy was raised by the TWU, arguing that a drug and alcohol testing program involves an intrusion into the privacy of individual employees. However, current standards and expectations of the community concerning health and safety in the workplace mean that of necessity there may be some constraints on the civil liberties at times. In the commissioner’s opinion, “What a person does in his own time may still have an effect on his work performance.”

Scientific evidence

“Whilst the genuine concerns raised by the TWU on behalf of its member contract drivers in this hearing should be borne in mind, the task essentially remains to determine the most appropriate and reliable method to adopt an evaluation based entirely on the scientific information available and provided to me.”

Drug testing and impairment

“Â… neither (on-site) urine testing nor oral fluid testing produces completely reliable data and whilst there may be no concrete relationship to establish conclusively impairment with a positive result from a urine test (or an oral test), there is certainly the risk of impairment Â… that risk is sufficient, to raise occupational health and safety concerns at work and thereby provide the proper basis for a drug and alcohol testing regime”.

“Â… Oral testing for drugs may in time become increasingly an appropriate and more convenient method (and more accurate one) to adopt than urine testing Â… oral testing for drugs has reached a stage where it has effectively made urine testing a redundant technique or replaced it as the preferred method to adopt in all cases.”

“Oral testing appears directed towards establishing actual impairment of the individual from the consumption of drugs rather than whether that individual has been using the drug regularly in the past, as urine testing tends to do.”

Risk and impairment

“In any event, to my mind a driver who has a non-negative urine test result, suggesting, as it may do, a history of drug taking, would also represent a cause of legitimate concern to an employer as a risk on occupational health and safety grounds. There is the ‘hangover’ effect to which an irregular or habitual user of cannabis still presents a safety risk due to a loss of cognitive function and motor skills.”

The commissioner suggested that on balance a more conservative approach is more appropriate, supporting at the present time a regime of urine testing as the safest method to adopt.

“Â… it seems to me still of concern that a chronic or habitual drug user may present a safety risk and something of which a transport business may be entitled to be aware, albeit that at the time of the testing the contract driver has not taken the drug so recently as to be actually physically impaired by it at the time; it must be acknowledged that the testing is random and I do not believe that a chronic user of cannabis who just happens to not have taken the drug on the day he is tested automatically should relieve his employer of any concerns on OH&S and road safety grounds that on other days he was driving he may have taken the drug and be impaired by it.”

Summary

The commissioner left the matter to be the subject of further discussions between Holcim management and the TWU with a view to the extension of the existing regime of the Holcim drug and alcohol policy, including random urine testing, to the contract drivers - the subject of these proceedings.

“Those discussions should, I believe, seek to clarify that the emphasis of the drug and alcohol policy is not primarily directed not to any disciplinary action but is to be considered as an occupational health and safety and road safety concern - as I believe is really the case.”

To view the complete report, Holcim (Australia) Pty Limited v Transport Workers’ Union of New South Wales [2010], visit http://www.medvet.com.au/downloads/Holcim-vs-TWU-Complete-Decision.pdf.