Employers at legal risk for not updating drug testing methods – union
Employers who continue to use urine testing as an only option for workplace drug testing may be breaking the law according to a union representing over 28,500 New Zealand workers. The advice comes following the establishment of a NZ standard for oral testing and appears to be supported by other law firms.
Oral testing is a far less intrusive way to test for drug testing and has been proven more effective to determining impairment at work over urine-based testing. Until March this year there was no approved standard for oral and as such, the courts have determined that it reasonable for employers to use the much more intrusive urine testing where a standard has existed for some years.
FIRST Union lawyer Oliver Christeller says now that there is an approved standard for oral testing, companies who do not move to this testing method are potentially in breach of the Privacy Act 1993.
“Principle 4 of the Privacy Act 1993 prevents companies from collecting information in a way that is unreasonably intrusive. I think it is fair to say that requiring someone to give a sample of their urine as opposed to simply providing an oral sample of saliva, is unreasonable given there is now an accredited standard for oral testing” said Mr Christeller.
The main issue is that drugs such as cannabis can take up to 24 hours before they are traceable within a urine sample, well after the period that impairment has worn off. The fast-developing technology behind oral testing means there is now testing equipment available that can accurately determine presence of the drug during the impairment period without detecting previous traces from historical use.
A Fair Work Australia decision in 2012 stated: 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.”
“There are concerns that some employers use urine testing as a way to target workers they want to get rid of for reasons other than impairment or health and safety reasons. A lot people do not realise that these testing agencies are for-profit companies that have an incentive to find drug use, even where it may not be within the scope of employment” added Christeller.
The union is currently going through a process of reviewing existing companies’ policies and engaging in a process to have them amended accordingly.