“Best Of Both Worlds”: Urine And Saliva Testing In The Workplace.

What You Need To Know

• The Fair Work Commission has recently upheld an employer’s right to use a combination of oral fluid sampling and urine sampling to randomly test employees for drugs and alcohol. The Commission agreed that a combined approach overcomes some of the limitations that arise in using one method alone.

What You Need To Do

• Employers should review their alcohol and other drugs in the workplace policies and consider whether to include both urine and saliva testing in any existing or newly created policy.

“A choice between private lives or saving lives, and I have opted for saving lives”. This is how Commissioner Cambridge described his decision that it was reasonable for an employer to include urine testing in its Alcohol and Other Drugs (AOD) policy.

In 2014, the employer developed a proposed AOD policy to be introduced onto its site, relying on urine testing as the sole method of sampling. The employer then engaged in consultation with the CFMEU and ultimately altered its policy to one of random testing, using oral fluid or urine sampling.

The CFMEU agreed to all other aspects of the policy, but opposed urine testing of any kind. On 1 August 2014, the CFMEU raised a dispute under the applicable enterprise agreement and sought a determination from the Commission that urine testing was an unreasonable intrusion into employees’ privacy.

The CFMEU Case

The CFMEU argued that only saliva testing should be used by the employer in any AOD policy because:

• oral fluid sampling provided a superior or equivalent means for identification of the presence of drugs which pose a risk to health and safety; and
• urine sampling has a number of undesirable consequences, including:
  • intrusion into the private lives of employees; and
  • identification of historical use of drugs which may not bear relevance to the capacity of an employee to safely perform work.

The Employer’s Case

The employer argued that in order to determine whether the inclusion of urine testing in its policy was reasonable, the Commission needed to consider all of the relevant circumstances of the case, including that:

• urine testing was a common practice at other coal export terminals with broad acceptance of this method of sampling;
• various aspects of urine testing made it more beneficial when compared to oral fluid testing;
• the combination of random oral fluid and urine testing overcame some of the limitations if either method was used in isolation; and
• there was a greater level of deterrence if employees did not know which method would be used on a particular day of testing.

The employer also noted that the proposed AOD policy adopted a very supportive approach which focussed on rehabilitation rather than disciplinary action.

Decision

The Commissioner noted the significant controversy and debate in many workplaces as to whether oral fluid or urine testing is the most appropriate method for workplace drug testing.

However, the Commissioner noted that this case was unique, given that the employer had changed its position from initially proposing urine sampling only. In particular, the Commissioner noted that “much of the argument about which is best, urine or oral fluid, becomes academic if both methods are randomly utilized.”

In this case, the real question was whether the random utilisation of both methods together is better than the positives and negatives of oral fluid alone.

Greater Deterrent

In considering the benefits of a combined approach, the Commissioner found that the random selection of testing methods provided a superior deterrent against drug use as it is “unquestionably more difficult to be equipped with adulteration materials and capacity” if the method of sampling is unknown to the employee on the day.

As a result, the Commissioner found that a combined testing approach provides long-term drug monitoring benefits, identification of acute-impairment, and overall, a superior deterrent against drug use when compared to oral fluid testing in isolation.

No Intrusion Into Private Lives

The CFMEU argued that urine testing may unreasonably intrude into the private lives of employees by detecting positive levels of a substance despite it being several days after the time the person had consumed the substance.

The Commissioner was critical of this argument, stating that where a person has levels of a substance at or above the cut-off levels set by the relevant Australian Standard, it was “unable to accept that a positive result would “in no way affect” capacity to perform work safely”.

In rejecting the position argued by the CFMEU, the Commissioner noted that “detection of the drug at or above the cut-off level expunges innocence.”

Oral Fluid Preferable To Urine Testing (In Isolation)
Interestingly, the Commissioner also commented on the debate of oral fluid versus urine testing. The Commissioner noted that had he been presented with an “either or” scenario, he would likely have held that oral fluid sampling represented, on balance, a preferable option to urine sampling.

Findings

In finding for the employer, the Commissioner noted that the superior benefits to be obtained by combining both oral fluid and urine testing outweighed any concerns about privacy detriments that would be experienced by employees who would be required to undertake urine sampling.

Making The Case: Insights From Geoff Giudice

In recent years the Commission has considered the issues associated with the use of urine samples for random drug testing on a number of occasions. The two main issues are:

• the efficacy of oral fluid sampling on the one hand and urine sampling on the other, and
• in the case of urine sampling, the balancing of workplace health and safety considerations against the private rights of employees.

Commissioner Cambridge decided that while positive oral fluid and urine samples tend to indicate different things, each test still has advantages. He also found that if it comes to a choice between the welfare of employees generally and the right of an individual employee to privacy, employee welfare should be given priority. The reasoning is compelling. Absent any significant developments in the science associated with drug testing, and provided there is no modification of it by a Full Bench, this decision is likely to be the benchmark in any future challenges to urine sampling.

 

For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com 

Stephen Nettleton, Partner, Ashurst

stephen.nettleton@ashurst.com

Geoffrey Giudice, Ashurst 
geoffrey.giudice@ashurst.com

Amy Linton, Ashurst

amy.linton@ashurst.com