Workplace drug testing: to wee or not to wee

Most of us would agree that there is no place for illicit drugs in the workplace. However, testing for drug use in the workplace remains a hotly debated topic. Proponents say it reduces risks in the workplace, while opponents say it is an imposition on workers’ private lives. Amidst the extremes, there has to be a workable solution.

There have been two recent landmark court cases in Australia that have helped clarify the place for drug testing in Australian workplaces. These are the Australian Industrial Relations Commission (AIRC) case of Shell Refining v the CFMEU in 2008 and the Fair Work Australia (FWA) case of Caltex Australia v the AWU in 2009.

Shell Refining v the CFMEU

In this case, Shell Refining presented the argument that urine testing was more likely to identify patterns of drug use in workers, which could lead to impairment or increased safety risks in the workplace; whereas oral fluid testing wasn’t as sensitive and, even when drugs were no longer detectable in workers tested by oral means, they may still have been impaired.

The CFMEU argued that as long as the usage of drugs did not hinder the performance of the workers or safety in the workplace, a worker’s private life was their own business. The union contended that while urine testing would identify drug use in workers outside of the workplace, the evidence was “moot” and was therefore an unnecessary incursion into the private lives of workers.

Presiding over the case was AIRC Senior Deputy President, JM Hamberger. In his deliberation, he stated: “It is clear from the evidence that the key difference between oral fluid and urine testing is that the former will detect drug use in the previous few hours, whereas the latter will detect drug use over the previous few days.

“My conclusion is that while conceivably there might be some very limited effect over a longer period, significant impairment only occurs for a few hours after the ingestion of drugs. Thus, while both oral fluid and urine testing will usually pick up anyone who has taken drugs in the previous few hours (and thus may well be impaired), urine testing will also pick up employees who have ingested drugs over the previous few days and are thus highly unlikely to be impaired at the time of the testing.

“Both parties also recognise that random testing is an intrusion on the privacy of individuals which can only be justified on health and safety grounds. Employers have a legitimate right (and indeed an 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, employers haves no right to dictate what drugs or alcohol employees take in their own time. Indeed, it would be unjust and unreasonable to do so.

“My conclusion is that the implementation of a urine-based random drug testing regime in these circumstances would be unjust and unreasonable. However, I have two qualifications.

“First, the evidence is that, at this stage, no laboratories have as yet been accredited under the relevant Australian standard. I note that Dr Vine’s [expert witness for Shell Refining] laboratory has applied for accreditation and the lack of accredited laboratories is likely to be resolved in the relatively near future. Nevertheless, the company cannot reasonably be expected to implement a random drug testing system based on oral fluids until laboratories such as RASL have been accredited.

“Secondly, there are drugs that the company may wish to test for (such as benzodiazepines) for which AS 4760 does not contain target concentration levels. The company should not be expected to implement an oral fluids-based regime until it has the agreement of the union and the laboratory it wishes to use on what other drugs it wishes to test for and what would be an appropriate target concentration level.

“Once these two issues are satisfactorily resolved, any random drug testing should be conducted using oral fluids. Until then, it would not be unreasonable for the company to implement a urine-based testing regime on an interim basis.”

Caltex Australia v the AWU

In this case, Caltex argued that its duties under the New South Wales Occupational Health and Safety Act 2000 were “onerous” and “absolute”; and that random tests would deter employees from working under the influence of drugs and alcohol in what was a “major hazard facility”. The company also argued that it had an absolute obligation to obviate any risk - even one not “reasonably foreseeable” - to the health and safety of its employees at the Kurnell refinery.

The AWU argued against random drug testing, claiming it had a “low likelihood of identifying drug usage but a high likelihood of disenfranchising workers to the detriment of occupational health and safety standards” and that testing would generate “resentment amongst workers to the detriment of occupational health and safety”.

In the end, FWA gave Caltex the green light to introduce random drug and alcohol testing. FWA Senior Deputy President Hamberger presided over this case as well and found in favour of oral fluid swabbing as a test for recent use of drugs, stating that the risk of an accident at the refinery due to employees being impaired by drugs is greater than one which is merely speculative. He added: “The consequences of an accident at Kurnell [refinery] due to an employee being impaired due to drugs could be devastating.”

Industry opinion

I spoke with an industrial drug testing expert to gain some further insight into the practical aspects of this matter.

Draeger Safety’s Drug Testing Product Manager, Stephan Hildebrandt, states that while his company primarily manufactures oral fluid testing devices, there is a justification for both types of drug testing to be used in industrial workplaces: “Each detection technique has a specific methodology that gives employers valuable information.

“For example, in a pre-employment situation, urine testing is the best method because it affords the employer a window into the lifestyles of a prospective employee. Since urine testing detects metabolites, which stay in the body long after the effect of the drug has worn off, it can be useful in identifying and screening out potential risk takers from your workforce.

“Oral fluid testing detects the parent drug or active ingredient that causes impairment. Once ingested, these active ingredients circulate through the body until they’re absorbed or discarded through the body’s waste. So this technique is best for the detection of the current consumption of drugs, which makes it more useful in determining if the subject is impaired at the time of testing. Urine testing, on the other hand, will identify if the subject has been taking drugs days or even weeks earlier.

“Urine testing was first used in the mining industry about 15 years ago. Back then, oral fluid drug tests simply were not available. They have only just come into widespread use in recent years as the technology has become available and more dependable. An Australian Standard for oral fluid drug testing was introduced in 2006 and, coupled with the landmark Shell v CFMEU court case, oral fluid drug testing has now become a mainstream screening process for many organisations in Australia.

“Quite notably, a major contributing factor in the uptake of oral fluid drug testing in the workplace has been its acceptance by many of the unions. They recognised that its focus was on actual impairment in the workplace, rather than on the detection of drug use - that is, it was not perceived as being judgmental of a worker’s lifestyle outside of work hours. The unions also realised that it is also much easier to conduct than urine testing and far less invasive and embarrassing for the workers.

“This is significant, because the integrity of the entire testing process must be maintained. Specifically, the process of obtaining the sample must be observed. This is not a problem with oral fluid specimens, but it can be a real problem with obtaining urine specimens, as it invades the privacy of workers.

“In the past, one of the more challenging issues with oral fluid drug testing was the subjective nature of the assessment. Early devices required the testing officer to assess the test strip to determine its reading. This is especially critical when it comes to borderline readings, where the officer may be under pressure to make a judgment call in front of employees, who could be a fellow employee or friend. Recent technologies have produced electronic readers that assess samples far more accurately and relieve the testing officer of having to make that judgment call, thereby maintaining the integrity of the testing process.”

Conclusion

An organisation’s drug policy (which may include random drug testing) should provide the following:

• A medical review officer to discuss the various options for treatment and rehabilitation with workers who return a non-negative test (through either testing method);
• Formal counselling for employees who return a non-negative test - unless there are significant mitigating or aggravating factors;
• Progressively more serious sanctions for repeat non-negative tests; and
• Employees who need time off work for drug-related problems with access to the organisation’s sick leave policy.