CLA is often asked about rights concerning drug tests in the workplace. Here two Australian academics discuss the usefulness of drug testing procedures and, among other issues, question whether mandatory testing can actually hide some problems that should be out in the open.
Workplace drug testing: caution urged
Ken Pidd & Ann Roche*
Drug testing is increasingly commonplace, with testing occurring in a wide range of settings including the workplace, the sporting arena, the roadside, prisons, clinical treatment and schools. The introduction of testing to these settings has raised a number of controversial issues. A comprehensive examination of all issues across all settings is beyond the scope of this paper. The focus of this brief paper will be on workplace testing, however, many of the issues raised also apply to other settings.
The rationale for drug testing
In most settings, the purpose of drug testing is to both detect and deter drug use. However, the rationale for detecting and deterring use can vary markedly according to the setting. For example, the rationale for drug testing in sports is to ensure fair competition, while the rationale for roadside drug testing is to improve road safety. Underlying the any rationale for testing are assumptions concerning the technical and practical capabilities of testing. The July issue of Of Susbtance (pages 24 – 26) examined some of these assumptions, along with the various methods currently used to test for drug use, in a variety of settings.
Drug testing as a method of deterring use
To-date, only three published studies have used national data sets to examine whether drug testing is an effective deterrent. The most recent of these (Carpenter 2007) analysed data collected from cross-sectional US national drug use surveys and found small, but consistent, patterns indicating workplace drug testing was associated with lower levels of worker drug use, especially where drug testing was frequent and penalties were severe (e.g., immediate termination of employment). However, lower levels of worker drug use were also apparent in non-drug testing workplaces that provided a drug education program, an employee assistance program, and a written drug policy (Carpenter, 2007). While the cross-sectional nature of this study limits conclusions regarding causality, the results are consistent with deterrence theory which proposes that timely sanctions are necessary for effective deterrence. However, as outlined below, a punitive approach to drug testing in the workplace may come at some cost.
Drug testing as a method of reducing drug-related harm
Reviews of research concerning workplace drug testing consistently fail to find robust evidence that testing is effective in reducing drug-related harm. Rather, research indicates workplace testing can result in employees holding negative attitudes toward their employer which in turn has a negative impact on productivity. Comer (2000) identified that while many employees see testing as relatively non-invasive, they also perceive it as being unable to detect impairment or enhance safety, and have a negative view of their experience in taking drug tests.
Drug testing may unintentionally obscure the true extent of harm in settings such as the workplace. This is most likely to occur when a positive test results in a punitive outcome (e.g., immediate termination of employment). For example, drug testing can result in:
- a focus on illicit drugs. Australian workforce data indicates a relatively small proportion engage in illicit drug use, but a much larger proportion engage in harmful patterns of alcohol consumption.
- less attention being paid to drug-related behaviours. Hangovers and other behaviours associated with drug use (e.g., aggression, mood swings) can continue to negatively impact on safety and productivity long after use is detectable by most testing methods.
- displacement effects. Individuals may shift from the use of drugs that are easily detected, to other drugs that are harder to detect. For example, due to the wide window of cannabis detection offered by urinalysis, individuals may shift to amphetamine use which has a much narrower window of detection.
- unintended behavioural change. Individuals may change their behaviour to avoid detection, rather than reducing use. For example, they may be aware of the timing of tests and change patterns of consumption to avoid detection, use commonly available masking agents, or consume additional over-the-counter or prescription medications that can also mask use.
Drug testing and drug impairment
An implicit assumption underlying the rationale for workplace testing is that it can improve safety by detecting impairment. While there is strong evidence for the efficacy of breath analysis as an indicator of blood alcohol content and for a cut off level of 0.05g/100mL to be indicative of alcohol impairment, no such evidence exists for alcohol or other drugs detected by urinalysis or saliva testing. A positive on-site urine or saliva test merely indicates that the individual has consumed a drug at some time in the past. Subsequent laboratory analysis can only estimate the likelihood that the individual may have been impaired.
Drug testing in the US as an example
Proponents of drug testing often present the US experience as support for the implementation of testing into Australian workplaces. However the US legal framework and US drug policy differ markedly from that of Australia and these differences affect the degree to which their testing experience translates to Australia.
The focus of US policy is on prohibition (‘zero tolerance’) via law enforcement. Australian drug policy is based on harm minimisation, which proposes prevention and reduction strategies can only be achieved through wide-ranging and broad-based interventions which encompass the whole community. The adoption of flexible principles and a harm minimising approach distinguishes Australia’s drug policy from US policy.
In the US workplace, drug testing is carried out under the Drug Free Workplace Act (1988; 1991) which mandates ‘drug free’ workplaces and implicitly authorises drug testing as a method of achieving a drug free workplace. This Act applies to all federal government employees, employers seeking federal government contracts of $25,000 or more and all federal government grantees. The Act allows employers to develop policies that prohibit the use of alcohol on the job and prohibits the use of illicit drugs at any time (Walsh 2008). In general, US Federal and State courts have upheld employers’ right to conduct drug tests and enforce a zero tolerance policy in regard to illicit drug use.
In contrast, Australia has no such legislation. The only exception to this is recent (2008) amendments to civil aviation safety regulations which mandate drug testing in the aviation industry. All other Australian workplaces deal with workplace drug issues under various Occupational Health and Safety Acts and Regulations which require employers and employees to take all reasonable steps to ensure a safe workplace. These Acts and Regulations either explicitly or implicitly refer to alcohol and drug use as a potential safety risk, but do not mandate or recommend testing as a response.
A recent review of Australian legal decisions concerning workplace testing (Roche et al. 2008) summarised the Australian position as recognising that drug testing is only one of a number of responses available to employers and is only considered reasonable where specific workplaces are deemed to be safety sensitive or have special needs. Zero tolerance random testing, in the absence of strong justification, has been judged as unreasonable.
Commercialisation and consumer protection
World wide, drug testing has grown into a billion dollar a year industry. In U.S workplaces alone it was estimated that between 30 and 40 million workers and job applicants were tested for illicit drug use in 2007, with accredited laboratories processing up to 75,000 samples daily (Walsh, 2008). With the commercialisation of testing comes concern over consumer protection. In the case of workplace testing, much of the information available to employers is provided by manufacturers of testing products and providers of testing services. With this information, there is always a potential conflict of interest between accurate consumer information and marketing strategy. Within the US, some degree of consumer protection is provided. All on-site Point of Collection Test (POCT) devices are required to be approved by the Federal Food and Drug Administration, workplace testing guidelines are mandatory, and testing laboratories are required to be certified by the US Department of Health and Human Services. In Australia, there is no requirement for on-site POCT devices to be approved by an Australian government authority, drug testing standards are voluntary, and laboratory accreditation is voluntary via membership of the National Association of Testing Authorities.
The inability of drug testing to detect drug impairment severely compromises its usefulness as a method of detecting risk to workplace safety. While testing may be useful in settings where the detection of drug use is a priority, the limitations of on-site POCT screening devices make it an imperative that all positive screens are subjected to laboratory confirmation. The increasing commercialisation of testing and the potentially negative consequences of testing in some settings also indicate the need for caution when considering testing, especially the workplace.
Carpenter, CS 2007. Workplace drug testing and worker drug use. Health Sciences Research, vol. 42, no. 2, pp. 795-810.
Comer, D 2000. Employees’ attitudes toward fitness-for-duty testing, Journal of Managerial Issues, vol. 12, no. 4, pp. 61-75.
Roche, AM, Pidd, K, Bywood, P, Duraisingam, V, Steeson, T, Freeman, T & Nicholas, R 2008. Drug testing in schools: Evidence, impact and alternatives. ANCD Research Paper 16, Australian National Council On Drugs, Canberra.
Walsh, JM 2008. New technology and new initiatives in US workplace testing. Forensic Science International, vol. 174, no. 2-3, pp. 120-14.
* Ken Pidd & Ann Roche write from The National Centre for Education and Training on Addiction, Adelaide.
This article first appeared in ‘Of Substance’, Vol 7, No 3. The magazine is the national magazine on alcohol, tobacco and other drugs. http://www.ofsubstance.org.au/
In its July 2009 issue, the magazine examined the mechanics of testing for illicit drugs. In this follow-up article, it asked, ‘Why is workplace drug testing so controversial?’.