Storm in a pee cup

The Fair Work Australia ruling in the Endeavour Energy v CEPU, ASU, APESMA case has again sparked a debate on drugs and alcohol testing in the workplace. Most of us agree that drug testing is vital in maintaining a safe and drug-free workplace; however, there still remains much-debated controversy about the most appropriate method for drug testing.

Earlier this year, Australian energy company Endeavour Energy looked to introduce a new drug testing policy that involved urine drug testing. In March 2012, Fair Work Australia (FWA) ruled against the proposal. The FWA decision found that the use of urine testing was unjust and unreasonable, according to Endeavour Energy. FWA determined Endeavour Energy could introduce its drug and alcohol testing program by using oral swabs, rather than testing urine samples, according to the company.

“We’re appealing one part of that decision while accepting the rest,” said the spokesperson for Endeavour Energy. “The appeal only relates to the method of testing for drugs. We believe we have an overriding legal and social responsibility to protect the safety of our staff at work from foreseeable risks associated with chronic drug use. It is urine testing, not oral swab testing that best mitigates those foreseeable risks,” claims the company. “When working with electricity, there is no margin for error as even the smallest mistake can be fatal or cause severe and permanent injury.”

It’s the duty of employers to provide a safe work environment and safe work systems to all its employees and it’s the duty of employees to take reasonable care for their safety at work and avoid harming others. In the National Hospital Morbidity Database (NHMD), there were 26,339 work-related injury cases in 2001-02, of which 1965 (7.5%) were estimated to be alcohol-related, according to Safe Work Australia’s work-related alcohol and drug use report released in 2007. The report further states that workers in the hospitality (15% frequently) and mining (22% occasionally, 22% infrequently) industries were more likely to drink alcohol at risky and high-risk levels for short-term harm (Roche & Pidd 2006a). It should be noted that workplace drug testing is now mandatory for the mining, aviation and transport industries.

The report further states that hospitality (13%) workers were more likely to drink at risky [levels] and agricultural (6%) industry workers were more likely to dink at high-risk level for long-term harm respectively (Roche & Pidd 2006a). Tradespersons are more likely to drink at risky and high risk levels for short-term harm (20% infrequently and 13% frequently), it adds.

The two most common methods of drug testing are - saliva or oral-fluid based drug testing, and urine drug testing. Both the methods have advantages as well as limitations. The advocates of urine testing argue that it is a more cost-effective and accurate method, while those against it say it’s an intrusive method. Oral drug testing, says the proponents, is a less intrusive method and has fewer privacy issues.

The method of drug testing should be determined based on the requirements and objectives of the company, said Steve Korkoneas, National Operations and Technical Manager, Medvet. “There is no one size fits all solution for workplace drug testing.”

On-site oral fluid drug testing, says Korkoneas, could be more convenient and deemed less invasive. However, the two key limitations of on-site oral fluid drug testing are: the existing on-site oral fluid drug testing devices have a significantly lower chance of detecting benzodiazepines (ie, Valium) and tetrahydrocannabinol (THC, marijuana), and there is no known or established correlation between blood THC levels and oral fluid THC levels, he adds. THC is the key mind-altering ingredient in cannabis.

While on-site oral fluid drug testing can detect drugs consumed less than 24 hours prior to testing (cannabis ingested less than four to six hours prior to testing), on-site urine testing can detect drugs ingested more than 24 hours prior to testing, adds Korkoneas. It should be noted, however, whichever method is used neither oral fluid nor urine can be used to measure if a donor is impaired. Drug testing can only determine the presence of a drug above a certain cut-off level. Cut-off levels should be described in a company’s Alcohol and other Drug Policy and Procedure, he adds.

John Walsh from Path Tech says that urine drug testing has a longer detection window, but oral drug testing can detect recent drug use and is a better measure for determining whether an employee is unfit for work. An employee’s personal life shouldn’t be of concern to an employer, he argues.

The case in question

In the Endeavour Energy v CEPU, ASU, APESMA case (currently under appeal), Fair Work Australia’s senior deputy president, JM Hamberger, noted: “It is clear from all the evidence presented during the hearings that neither oral fluid nor urine testing devices are perfect. Seen from one perspective, urine testing can be seen as more ‘accurate’ in that it is more likely to pick up whether an employee has at some stage taken certain substances. However, that is not necessarily the goal of a workplace drug testing regime.

Hamberger repeated what he said in the Shell Refining v CFMEU case: “... The employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health or safety. Beyond that the employer has no right to dictate what drugs or alcohol its employees take in their own time. Indeed, it would be unjust and unreasonable to do so.” Hamberger concluded: “Both methods are susceptible to cheating. For example, cleaning one’s mouth thoroughly after smoking cannabis would minimise the risk of being caught by an oral fluids test. Urine can also be adulterated. There is some evidence that saliva/oral fluid screening is less susceptible to specimen adulteration or substitution compared to urinalysis. In practice, however, the likelihood of someone being in a position to cheat effectively when a test is conducted at random and with no prior warning is in my opinion relatively low.

“Neither method tests directly for impairment. However, a method which tests for recent consumption (only) is more likely to identify someone who is impaired. While some witnesses regard this as a weakness, it is precisely because it only detects for recent use that oral fluid testing is a better indicator of likely impairment as a result of smoking cannabis (the most widely used drug apart from alcohol) than a urine test. Indeed, urine testing may be unable to identify that someone has smoked cannabis in the previous four hours - precisely the time frame which is most relevant for identifying likely impairment.

“Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance. This means that a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely. In the circumstances where oral fluid testing - which does not have this disadvantage - is readily available, I find that the introduction of urine testing by the applicant would be unjust and unreasonable. Accordingly, I find that the system of drug testing that should be used by the applicant for on-site drug testing should be that involving oral fluids. This should be done on the basis of AS4760 -2006: the Australian Standard governing procedures for specimen collection and the detection and quantitation of drugs in oral fluid.”

The national resource industry employer group AMMA argues that FWA’s recent Endeavour ruling appears contradictory to an earlier decision involving HWE Mining, where the tribunal ruled that urine testing was more accurate and less likely to produce false negatives.

Endeavour Energy is also seeking clarity on the status of urine testing considering two different rulings by FWA in the recent past - one concerning HWE Mining and the other relating to Endeavour Energy. The HWE decision found that urine testing was not unjust or unreasonable while the most recent decision found that urine testing at Endeavour Energy was unjust and unreasonable, says the company.

“Based on the findings in the HWE Mining case, there is a strong argument to be made that mining industry employers are obligated to adopt urine testing as the most accurate method of on-site screening in order to meet their stringent obligations under OHS laws,” said Steve Knott, CEO, AMMA, in a media statement.

Conclusion

The ongoing debate about the appropriate method for drug testing, conflicting decisions from FWA and contradictory views from industry experts make it hard for businesses to design the appropriate drug testing policy.

There are three types of testing: random drug testing where employees are randomly selected for drug testing, incident-driven testing system and ‘for cause’ testing, informs Walsh. A lot of companies have “wishy-washy” drug testing policies, adds Walsh, noting that it is important to have a tight policy which is communicated clearly from the top to the bottom of the organisation.

Having an alcohol and other drug policy and procedure demonstrates commitment to a safe and healthy workplace, for all employees, says Korkoneas, noting that organisations should consider the following points when implementing an alcohol and other drug program:

• Consultation with unions and staff - consult early and consult often; form a working party with a variety of key stakeholders. This will ensure a smooth implementation down the track.
• Consider workplace risk factors and goals of the alcohol and other drug program, eg, preventing harm through education; management of risk factors associated with alcohol and other drug use.
• Based on your goals, identify whether oral fluid or urine testing will best suit your workplace.
• Include procedures in how to manage affected staff eg, identification of an affected person, use of an employee assistance provider, strategy for a return to work program.