How Far is Too Far?
The ‘Unreasonable’ Face of Drug Testing in the Workplace
The Australian Injecting and Illicit Drug Users League (AIVL) and Harm Reduction Victoria (HRVic), the national and Victorian organisations representing people who use drugs and people in drug treatment are extremely concerned about the recent ruling of the full bench of Fair Work Australia making mandatory drug testing in the Victorian building industry a reality. “Commentators have labelled it as a “landmark” decision but we fear it will be ‘landmark’ only because of the enormously harmful and negative impacts it is likely to have on employees, employers and workplaces generally” said Annie Madden, AIVL Executive Officer.
While both Fair Work Australia and the contractors involved have cited concerns for workplace safety as the main drivers behind the decision to allow compulsory drug testing, AIVL and HRVic believe that improved safety is unlikely to be a major outcome. Available data highlights the high cost of drug testing. While the cost of drug screening varies depending on the type of test used, a standard confirmatory urine test can cost over $100 once laboratory processing is included. This could result in large companies spending tens of thousands of dollars per week on random drug screening in addition to the productivity losses associated with the time for staff to regularly undertake such testing.
Many in the drug treatment sector question the value and effectiveness of randomised drug testing and favour instead developing supportive environments that are focused on health outcomes not punishment. “What makes the building industry in Victoria or any other employers for that matter think they will be able to turn something that has been questioned as ineffective and expensive in the healthcare setting into a useful OH&S tool? It is very likely to just drive people underground, away from information and support and towards high risk practices as they try to avoid the punitive impact of a positive drug screen at work” stated Ms Jenny Kelsall, HRVic’s Acting Executive Officer.
The industry itself has admitted there is little “hard data” to show people are turning up to work under the influence of alcohol and drugs. It seems a very high risk and expensive approach to be pursuing for a problem that isn’t confirmed to even exist. “This ruling rests on the flawed assumption that the mere presence of a substance equals impairment. Many substances remain in the system for days, weeks, even months in the case of cannabis. Theoretically someone could have a joint on the weekends, never smoke during the week or attend work intoxicated or impaired but still deliver continuous positive drug screens” claimed. Ms Madden
The unintended consequences of introducing workplace drug testing has been seen in WA where there are reports of people shifting from cannabis use to using ‘kronic’ due to a belief, that as a relatively ‘new’ drug, it was less likely to be included in a drug screen. This is also supported by evidence in prisons whereby people have reportedly shifted from smoking cannabis to injecting short-acting substances in an effort to avoid positive drug screens. Such shifts in drug use practices can lead to increased health risks such as transmission of blood borne viruses including HIV and hepatitis C.
The numbers of workers potentially affected by this ruling is not insignificant with the National Drug Strategy Household Survey alone showing that more than half the respondents aged 30-39 years had used cannabis in their life time. In addition to the potential health impacts, the ruling also raises major issues in relation to privacy, human rights and what is ‘reasonable’ when it comes to what people do in their time outside of work. “How far are we prepared to go? It seems that when illicit drugs are involved people’s basic human rights and privacy concerns simply don’t matter. Fair Work Australia clearly considered what is ‘reasonable’ from the point of view of the employer but what about the employee?” asked Ms Kelsall.
If this ruling includes both licit and illicit substances, which seems to be the case, there may also be major implications for the large numbers of people who are on prescription medications including benzodiazepines, anti-depressants, etc. It is extremely unclear how Fair Work Australia expects the ruling to be operationalise including what drugs will be subjected to testing, how privacy will be protected, where employers will access the necessary expertise to make fair and evidence-based decisions in relation to individual drug screen results and how to manage the inevitable employee legal actions associated with poor decision making and breaches of rights protected at law.
AIVL and HRVic are very concerned about the potential impact on and privacy concerns for the large number of employees who are engaged in drug treatment programs such as methadone and buprenorphine. These are legal, evidence-based programs and people have a right to privacy in relation to their treatment for health conditions. Attitudes to illicit drug use are such however that people routinely face stigma and discrimination within the workplace if they are found to be on methadone or buprenorphine. Suchinformation has resulted in people being forced out of and/or being dismissed from their jobs. This is the ‘unreasonable’ face of workplace-based drug testing that no-one wants to acknowledge or admit to.
“In the end we all have to ask ourselves, as a community, how far does this go, how many industries, how many people potentially facing job loss and family breakdown because Fair Work Australia has failed to fully assess the far reaching implications of this decision and have instead invested in out-dated and harmful stereotypes about people who use drugs” concluded Ms Madden.