Storm in a pee cup

Drug-related impairment in the workplace is undoubtedly a serious issue and a legitimate concern for employers. But do our current testing procedures sufficiently balance the need for accuracy, the rights of employees and the principles of natural justice? Or does New Zealand currently have a drug testing problem?

Standing next to a row of toilet cubicles in a Wellington drug testing agency, Sarah’s nervousness gave way to panic. The shy 20-something office worker did her best to contain herself in front of the agency’s manager and his assistant, but she was fraught with worry.

A few minutes earlier, the assistant had studiously patted her down before sending her into the toilet. To ensure someone else’s urine wasn’t being substituted, the assistant stood with her ear by the cubicle door while Sarah awkwardly pissed in the cup.

It only took a quick shake of the urine canister and a short moment for the assistant to tell her she’d failed her workplace drug test.

The agency’s manager came in and confirmed. With her mind spinning and the sense that she was being eyed suspiciously, Sarah didn’t initially understand how this could have happened. Having come out of hospital only a few days earlier, she was feeling drowsy and was worried they would just see an addled junkie.

Eventually it occurred to her that her course of codeine painkillers could have been the cause.

The manager sent her on her way saying he needed to see the prescription. She raced home and desperately searched for the script. Fortunately, she hadn’t thrown it out.

The agency gave her a tentative reprieve but said the lab would take a few days to do further tests and confirm. In the end, she passed but was left with a negative feeling towards her employer and resented what she saw as a pointless exercise in bureaucratic box ticking.

Sarah, not her real name, is one of the many people who’ve been innocently caught up in the burgeoning drug testing net. But not everyone is innocent – there’s no doubt New Zealand has a drug problem.

According to ACC, more than half of New Zealanders are binge drinkers, one in seven smokes cannabis and eight percent have used three or more illegal drugs in the last year. With statistics like that, impairment of staff is a valid concern in safety-sensitive industries like aviation and forestry.

And since Air New Zealand won the right in the Employment Court in 2004 to test workers, workplace testing has become a boom industry. One private testing company boasts a 400 percent increase in the number of tests it conducted between 2009 and 2011, with about one in 10 tests returning positive results.

So it would seem we also have a drug testing problem. How do we balance civil liberties, such as right to privacy, with the need for workplace safety? Are drug tests the best answer for this societal problem? And do tests actually address the issue?

Not so much, according to Victoria University’s Julian Buchanan. The Associate Professor and Programme Director for the university’s Criminology School has worked in substance abuse management for three decades, and he doubts the benefits of workplace drug testing.

“Whenever you’ve got any testing in a laboratory, you end up with false positives and false negatives,” he says. “It’s always a contested result.”

Aside from human error, results can be skewed in other ways. Substances as innocuous as poppy seeds and painkillers containing codeine have been known to cause positive tests for opium.

But Buchanan says concerns about the validity of drug tests are much broader, as current techniques only indicate a drug’s presence – not whether the person tested is actually impaired.

“Someone might have used cannabis on a Saturday and test positive on Wednesday, but they’re not intoxicated,” he says.

“It’s a bit like me being tested for alcohol. I had a glass of red wine last night. If I test positive for alcohol today but I’m not intoxicated, should I lose my job? It doesn’t make sense; it’s a breach of civil liberties.”

But those concerns haven’t stopped the rapid growth of the drug testing industry, and Buchanan is troubled by the transparency of some of the companies within it.

“There’s lots of glossy brochures and promotion, but we’re only getting a one-sided argument on drug testing,”
he says.

“The question is: knowing the severe limitations of drug testing, who, if anybody, should it be applicable to? It has been rolled out across the board and is being used arbitrarily with some quite worrying consequences.”

The law

No single law addresses workplace drug testing. Instead, it is regulated by a combination of case law and five Acts. These include the Crimes Act, which addresses whether forced drug tests could amount to assault, while the Employment Relations Act requires good faith consultation in the development of a workplace drug testing policy. The umbrella Bill of Rights Act outlines the rights to refuse medical treatment, be secure from unreasonable search and seizure and not suffer arbitrary arrest or detention.

Employment law specialist Peter Cullen, a partner at Cullen – The Employment Law Firm in Wellington, says this combination ensures a fair balance between workplace safety and personal right to privacy. He says the 2004 Employment Court case between six unions and Air New Zealand set the scene for workplace drug testing in New Zealand.

“It’s an obvious area where you’d expect a line to be drawn because of the need to protect the public in terms of safety on the one hand and to see the reach of the law doesn’t go beyond what’s reasonably necessary on the other,” he explains.

Air New Zealand won the case, with the court allowing drug testing in safety-sensitive areas.

While Cullen says case law and legislation strike a balance between individual rights and workplace safety, there can still be issues around consultation.

“If a workplace is not sure it’s a safety-sensitive area and they bring in a drug testing policy, employees may not be aware it’s not something the employer can actually do,” he says. “That’s potentially an area of dispute.”

Employers aren’t legally required to offer support, but some large companies have chosen to write it into their drug testing policy. Air New Zealand is one of those companies.

“It’s always had an element in its policy of giving people who have infringed the opportunity to engage in a recovery process,” Cullen explains.

“It’s not a black and white policy with them. If people want to change, they’ll often give them another chance. They’ll be strict about it and make sure they do what they said they’ll do.”

Education and rehabilitation programmes are both part of Air New Zealand’s testing policy. Although testing positive could result in “disciplinary action”, it is more likely to lead to a referral to one of the available assistance and rehabilitation programmes.

It’s a strategy that academic studies have found effective. One published in the United States by Health Sciences Research found lower levels of worker drug use in companies with drug education and employees assistance programmes. Nobody from Air New Zealand was available to discuss drug testing policy for this story, but a lawyer for the Engineering, Printing and Manufacturing Union (EPMU), Greg Lloyd, says it’s a step in the right direction.

“They have a comprehensive policy and on paper it looks great, but like anything, something’s only as good as its application,” he adds.

He says to help ensure good workplace culture, company drug policies should also exclude random testing, have a greater emphasis on rehabilitation over punishment and provide for consultation and representation. But even so, these policies don’t necessarily protect employees.

“There’s certainly examples of employers who implement these policies,” he says.

“They have provision for rehabilitation, but whether it’s a local manager or HR manager, they take the view that ‘you tested positive, we have the right to sack you, so we’re going to do it’.”

Even with a supportive policy in place, drug testing can contribute to negative company culture. A study by Professor Debra Comer for Pittsburgh State University’s Journal of Managerial Issues showed that, while employees found drug testing non-invasive, it created negative attitudes towards employers from staff because they felt the tests failed to detect impairment and enhance safety.

New Zealand Drug Foundation Executive Director Ross Bell says, even with staff consultation, companies’ good intentions don’t always carry through. Even if organisations develop good policies offering support, he says, echoing Lloyd, a failed drug test can quickly trump agreed processes.

“We’ve got a bit of a challenging environment where employers want to put something good in place, but because it’s drugs, they’re scared. It kind of freaks them out.”

“And then,” Bell adds, “there are these snake oil salesmen that come to them with the perfect solution saying: ‘Here’s this complex issue of alcohol and drugs in the workplace, and you have to manage your hazards, and the best way to do it is to get your employees to pee in a cup’.”

Bell says many employers mistakenly see drug testing as the perfect deterrent, despite the tests being expensive and too often inaccurate.

“Not only is the science still a bit ‘iffy’, but asking staff to pee in a cup is a degrading approach. Fundamentally, it strikes me as an awful way to develop workplace culture.”

Like Buchanan and Lloyd, Bell is concerned about the tests’ failure to measure actual impairment. He says, although the mandate is to ensure workplace safety, drug testing companies ignore that their tests don’t pick up whether someone is hung-over or impaired from fatigue but will test positive to someone who has drugs in their system but is in no way impaired.

The unnecessary and negative fallout from a ‘positive’ drug test result is perhaps best illustrated by the aftermath from a hot-air balloon crash in Carterton earlier this year that resulted in the deaths of all 11 occupants.

After the accident, a government agency investigating the crash informed media that cannabis was found in the pilot’s system. The bold newspaper headlines and court of public opinion weren’t going to wait to hear that the ambiguous reference to drugs simply meant he had consumed cannabis sometime in the last month.

Bell says, despite there being no evidence the pilot was impaired at the time of the crash, his name was besmirched, the families of the victims caused further grief and New Zealand’s international reputation as a safe tourist destination damaged.

“It’s irresponsible and sadly consistent with a lot of public coverage you get of any drug topic, whether the drugs are a cause or not,” Bell says.
“It seems to us that, because it’s drugs,

all kinds of natural justice principles can be thrown out the window.”

Moreover, Bell says more harm can be caused by drugs that are less detectable. When blood testing is used, such as after the balloon crash, traces of cannabis can be found a month after use. With urine tests - the usual method for workplace drug testing in New Zealand - it’s a week after use. However, methamphetamine can clear a person’s system in about 24 hours.

“You could get workers switching from a relatively less harmful drug like cannabis to a more harmful drug like meth. It’s an absolutely bizarre unintended consequence that the drug testing industry seems to ignore,” Bell says.

Other answers

A United Kingdom inquiry between 2002–2004 by the Joseph Rowntree Foundation into workplace drug testing concludes that there is “no justification for drug testing in the workplace as a means of policing the private behaviour of employees or of improving performance and productivity”.

The foundation, a social policy and research development charity founded in 1904, found drug testing has a role to play, particularly where safety is a concern, but investing in management training and systems is likely to have a more positive impact and would be less costly, divisive and invasive.

But what are the alternatives in the New Zealand context?

Back at Victoria University, Associate Professor Buchanan thinks drug testing has the potential to be developed into something workable, but it’d be a difficult and lengthy process.

He says the current legal levels for driver alcohol breath testing took a lot of testing and time to develop, and it would be significantly more difficult to define impairment test levels for multiple drugs.

He argues it would make more sense for workplaces to design behavioural cognitive tests indicating impairment relative to tasks performed by staff members. These sorts of tests would also capture people who were fatigued or hung-over to the point of being a risk to safety.

Buchanan also says a good workplace culture that invites trust and openness between staff and management would be more valuable.

“If we’re worried about people who are impaired or have got drug and alcohol problems, the best way is to talk to them rather than police them.

“If you have a child and they have problems or issues, the best way to deal with those issues is to have a relationship with open communication.

“If you start drug testing your children, once you go down that route of distrust and policing, you might improve your stats, but you’re not necessarily improving the situation. Because all you have is a hiding culture, a deceitful culture.” And there are other alternatives that

have proved successful in the workplace. About six years ago, the EPMU developed a peer intervention and support programme called ‘Not on the Job Mate’, where workers looked out for workmates. It was based on a similar workers’ support initiative created by the Australian Builders Union, which gained official recognition from the United Nations International Labour Organization as being the ideal form of drug management programme.

Although it fell off the radar with the growing prevalence of drug testing in New Zealand, the EPMU is looking at reimplementing it.

At the Drug Foundation, Bell agrees with the need to focus on developing positive workplace culture. “Employers have to put a bit of effort into their workplace culture rather than taking an enforcement or punitive approach.

“Bosses have two choices: they can either build a workplace culture that has high trust and collaboration between workers and bosses or they can create a culture that creates an ‘us and them’ barrier, which can’t be good for workplace productivity.”

* There are many variables affecting drug detection times, including body weight, metabolism, form of drug intake, strength of drug and frequency of drug use.