The future of drug testing in Australia
Since the beginning of 2014, there has been an increasing trend of drug testing amongst various entities in Australia. These include those in Construction, Forestry, Mining, Law firms and even citizen drivers.
What exactly led to this and why? Drugs have always been a major safety concern in the workforce and on the road in Australia, especially when it comes to recreational drugs. In the United Nation’s 2014 World Drug Report, Australia was found to be leading the world in the use of the party drug ecstasy, third in methamphetamines and fourth in cocaine – not something we should be proud of at all.
The recent rise in drug testing is due to a few reasons, one of them being the increasing use of drugs such as Ice and new synthetic drugs such as synthetic cannabis among Australians. The latest synthetic drug to hit Australian shores is flakka, similar to the dreaded “bath salt” drugs found on the market, and it’s already causing a stir among employers worried that their staff are using it. The synthetic drugs are also relatively cheap because they are technically not illegal, resulting in higher use or possibly worse, abuse.
Most recently, the move towards legalisation of medicinal marijuana in Victoria is also bound to be a cause for concern for employers. While mostly aimed at benefiting those suffering from serious medical conditions, the legalisation of medicinal marijuana will open up a lot of opportunities for the drug to be sold to the wider community as well. If the trend in the U.S. is anything to go by, we might see drug testing in the workplace even relaxing due to the changing state legislation on medicinal and even recreational marijuana use.
On the road as well, police are nabbing more and more drug-influenced drivers with each police operation. During a recent NSW police operation, almost half of the drivers tested positive for illegal drugs, including ice.
Drug testing in Australia today
To counter the rise of drug use in Australia and strengthen workplace and road safety, employers and law enforcement are not only increasing the use of drug testing at work and on the road, but also enforcing new laws.
Earlier this year, the CFMEU and Victorian Labor even reversed their opposition to mandatory drug testing on construction sites due to growing problems with the drug, ice.
Most recently, Australian Minister for Employment Senator Eric Abetz announced that the Australian Building Code will now require drug and alcohol testing on construction sites, stating that:
Safety is a paramount consideration on construction sites. It is simply an unacceptable risk to the health and safety of employees and the public to have workers affected by drugs or alcohol on construction sites.
Workplace drug testing isn’t just contained within safety-critical industries such as construction and mining – it’s also spreading to white collar workers. Even professional entities such as law firms are drug testing job hopefuls due to the increase in incidents involving lawyers using or selling drugs.
It has been reported that BHP Billiton, Rio Tinto and BMA Coal are among the companies requesting synthetic drug testing because of an increase in detections on their remote sites and the belief among workers that they would not get caught.
Because drug testing kits usually detect up to seven of the most common drug groups and their metabolites, they are unable to test for the new synthetic drugs, making it easy for drug-affected employees to go to work undetected.
Thankfully, drug testing kits are constantly being developed to test for new drugs, and kits such as the Synthetic Marijuana Drug Test are already available on the market for companies wanting to test their employees for synthetic cannabis.
Drug driving penalties are getting tougher as well in a move to tighten safety and deter drug users from getting behind the wheel. NSW police will be rolling out random drug testing state-wide, a move already introduced in WA and expected to be implemented in all other states sooner or later.
The case against drug testing
Unlike drink driving offences, which have a threshold of 0.05%BAC, there is no allowed limit for drugs. One issue raised by those opposing the new drug driving laws is that it apprehends the user based on the presence of drugs in one’s system, and not the level of active drugs still in one’s system.
Not only is everyone’s metabolism different, but different drugs can stay in the system for days or weeks before it is completely out of your system. Therefore, there is a possibility that drug testing kits might inevitably pick up on traces of drugs from previous use, even if the drug may not have an influence on he person at the time of testing.
To police and employers, the lack of a drug tolerance threshold should further deter drivers and employees from using drugs.
However, the NSW Council for Civil Liberties argue that the strict liability offence was unfair as testing only discloses prior drug usage, which may have no adverse impairment of driving ability.
Greens MP David Shoebridge said the drug testing was a waste of money that undermined the legal system by making it a “de facto criminal offence of having potentially minuscule quantities of drugs present in your system”.
Visiting fellow at the Australian National University and health and justice expert David McDonald said the testing was “very odd” compared to similar systems such as those in Britain, which tested for levels indicating impairment and included other, legal, drugs known to affect driving such as benzodiazepines like valium.
The future of drug testing in Australia
So is it still safe to say that there’s a necessity to test employees and drivers for drug usage? With the rising use of drugs in Australia and the increasing problem of new, synthetic drugs in the market, we expect a huge push for mandatory drug testing in the workforce and on the road, and an increase in pre-employment drug testing.
With drugs and alcohol costing Australian workplaces an estimated $6 billion a year in lost productivity and approximately 2.5 million work days lost each year, employers will always have the need to enforce stricter rules when it comes to drug use in the workplace. And of course, the increasing amount of drug drivers caught by police every year and the rising number of fatalities caused by drug drivers is only another reason to push for roadside drug testing to keep drug drivers off the road.
While the cases against drug testing are valid, they are not enough to completely abolish the need for drug testing in the future. It is likely that levels of drug use that indicate impairment will be specified in workplace and road regulations, so that only employees or drivers who test positive over a certain threshold will be implicated.
Graduates and job seekers would also have to be prepared to provide a urine or saliva sample for drug testing during a job interview in the future. Large corporations in the U.S. already conduct pre-employment drug testing, and a growing number of companies in Australia are following suit. We can only predict that if drug use among Australians do not decrease, more companies both small and large will soon start implementing it as well.
To quote Kirk Hardy, CEO of The Drug Detection Agency (TDDA):
“I think with the increase [with drug usage] we are seeing it will become part of the normal hiring process for a majority of the professional service type organisations, the companies that do not drug test will soon attract a different calibre of employee and it’s not the type you would want working in your environment.”
Drug use is fast becoming a serious issue in Australia and if employers are not implementing rules against drug use in the workplace, then they are disregarding the safety of their workplace and employees and putting themselves and their business at risk.
You can now make the choice to leave your company as it is, and assume that your employee actually fell sick 7 times in the past 3 months; or you can get a drug testing kit or implement a drug testing policy to ensure that you’re hiring the right kind of people in your workplace.
In the next couple of years, as Victoria (and possibly country) moves towards the legalisation of medicinal marijuana, workplace drug testing will face various changes. If we look at the state of America now after the legalisation of marijuana, we can expect the following to happen:
- there will be a move towards the legalisation of recreational marijuana as well
- companies will have to decide between two extremes: tightening policies on positive test results to keep users out of their workforces, or loosening them to avoid driving away qualified employees
- employers will increasingly face legal challenges from employees who say that state law allows them to use medicinal marijuana away from work
- there will be an increase in lost productivity, likely driven by heavier marijuana use
- new privacy issues will arise, as drug testing only measures whether a person has recently used a drug, and not impairment
- drug testing will become more regular and probably mandatory, especially among employees involved in road travel, as research revealed that marijuana alone increased the likelihood of being involved in a fatal crash by 80 percent
While legal cannabis will only be available in Victoria in 2017, it’s a good idea for employers to start planning ahead now. There will be new legislation and new issues to consider when it comes to workplace safety and drug testing. Employers must find ways to be compliant with state and federal laws while maintaining a safe workplace, and with the many complications that could arise, it’s wise to start thinking about amending your drug testing policies soon.
What do you think? Will drug testing soon become mandatory in Australia, or is it just an infringement of personal rights?
For information and assistance with drug testing Australia workplace employees, be sure to talk to our workplace drug testing experts on 1300 800 200 (AU) or +613 8899 6900 (International) for a free consultation.
Miners to test for synthetic drug use https://www.theaustralian.com.au/national-affairs/health/miners-to-test-for-synthetic-drug-use/story-fn59nokw-1227546315293
Drug testing both saliva and urine can be OK, says Full Bench of the Fair Work Commission https://www.claytonutz.com/publications/news/201508/25/drug_testing_both_saliva_and_urine_can_be_ok_says_full_bench_of_the_fair_work_commission.page
New drug and alcohol tests for building sites may be Eric Abetz’s swansong https://www.smh.com.au/nsw/new-drug-and-alcohol-tests-for-building-sites-may-be-eric-abetzs-swansong-20150918-gjq0hy.html
Lawyer drug testing soars https://www.australasianlawyer.com.au/news/lawyer-drug-testing-soars-205029.aspx
Which is more harmful? Alcohol or drugs? https://www.webmd.com/mental-health/addiction/news/20101101/alcohol-more-harmful-than-crack-or-heroin
Alcohol and drugs in the workplace https://www.druginfo.adf.org.au/fact-sheets/alcohol-and-drugs-in-the-workplace
Marijuana legalization clashes with drug testing in the workplace https://www.theguardian.com/sustainable-business/2015/apr/19/marijuana-workplace-drug-testing-employers-employees-medical-recreational
How Marijuana Legislation Will Affect Drug Testing In The Workplace https://www.forbes.com/sites/groupthink/2014/09/30/how-marijuana-legislation-will-affect-drug-testing-in-the-workplace/
Will pot legalization change workplace drug testing? https://www.bucyrustelegraphforum.com/story/news/local/in-depth/2015/05/04/will-pot-legalization-change-workplace-drug-testing/26694859/