11 February 2015

Workplace Drug Testing

'A workplace drug testing act for Australia' by Jason Grant Allen, Jeremy Prichard and Lynden Griggs in (2013) 32(2) The University of Queensland Law Journal comments
 Testing employees on a mandatory basis for alcohol and illicit drugs in the workplace in Australia is not uncommon. However, in those industries where it does occur, such as mining, transportation, and correctional services, and with the understanding that the employer does have the right to insist that the employees be tested, what are the corresponding obligations vis-a-vis the employees' privacy and safety. What our analysis will show is that while privacy remains the prevalent employee concern, workplace drug testing can be justified for reasons of employer productivity, safety within the workplace, and the integrity expected of employees within industries where the community would be adversely sensitive to any notion that the employees were not observing the legal and moral code expected of law-abiding citizens (exemplars would be the police and those serving in correctional facilities). But justification alone is not enough. Workplace drug testing needs to be supported by appropriately argued and supported parameters as to when it can occur, how it can occur, what can be tested, and what can be done with the results. It is only by specifying these boundaries that we as a community will support and accept the intrusive nature of workplace drug testing. Law must have a role in setting those limits. To date the decisions on this practice have failed to do this.
This article proceeds in four parts. Section 1 reviews the literature on drug use in Australia and its estimated financial impact on Australian industry. It traces the development of workplace drug testing and outlines the employee privacy concerns that, to this day, remain the most compelling argument against the practice. Section 2 presents our tri-partite approach to justifying workplace drug testing. The elements that are drawn out by the literature, by experience, and by intuition in promoting the use of workplace drug testing are: productivity, safety, and integrity. But we also note that further bases may be relevant, most notably, third-party and public economic loss and environmental harm. It will be these principled elements that we consider will provide the foundation of legislative reform. Section 3 briefly outlines the sources of current regulation in Australia, including contract law, labour law, occupational health and safety law, anti-discrimination law and industry-specific legislation and précises why, even in conjunction, they have failed to provide a normative architecture that achieves an appropriate balance between employee interests and employer concerns that compel workplace drug testing. Having outlined the extent of workplace drug testing, the framework for its existence and the concerns with current regulation, the final section sketches the principles that underlie the form and content of a Workplace Drug Testing Act and a Workplace Drug Testing Regulation that we argue is necessary.
The authors conclude -
WDT is a defensible response to certain heads of concern, including productivity, OHS and integrity. Other concerns, while perhaps relevant, are by their nature too broad and are ill-suited to circumscribe fitting parameters for WDT practice. Other concerns are inappropriate as a basis on which to test workers for drug and alcohol use, in particular criminal drug law enforcement. WDT theory and practice must continue to reflect its context of employment law by remaining focussed on factors truly relevant to the employment relationship. Whatever those parameters are, WDT must occur within parameters that are more clearly specified. The limits of WDT are to be determined by reference to employees’ privacy interests, on the one hand, as against employers’ legitimate interests and public interests on the other. We have suggested that these interests can be organised under the three heads of justification we have identified. Every justification is, by nature, limited; by starting with the justification and working through a rational process of risk assessment, it is possible to define in each case just how far the risk identified will carry the argument for WDT into the realm of employee privacy. The nature of this task means that the answer will change dependent on the circumstance of each particular workplace, but basic standards can be established across the board.
For this reason, legislation is desirable in Australia to regulate the growing WDT industry. While the traditional sources of law have provided some normative framework for WDT practice, they are insufficient to ensure that WDT respect employee privacy while achieving its legitimate goals. In Australia, one of the major arguments for WDT legislation is the argument to certainty. It is undesirable to continue testing the acceptable parameters of WDT in the courts and tribunals. Industrial dispute litigation is disruptive and expensive. The situation is not ideal for employees, whose rights to privacy are without adequate protection. Likewise, employers are liable under OHS norms if they allow employee drug use to compromise workplace safety, yet they are also exposed to risk if the WDT programme they implement is too intrusive.
As to form, the legislation we advocate should take the form of a short, proscriptive, principle-based text. Following the OHS model, this could take the form of nationally uniform state legislation, or commonwealth legislation relying on the corporations’ power. Prescriptive WDT standards, in turn, should be provided in a regulation, reviewed and updated routinely by delegated authority. The text of the Act should centre on establishing the acceptable heads of WDT and the basic principles applicable to it. The Regulation should provide when employees may be tested and reference this back to the relevant head(s), what they may be tested for, how this is to be done and what may happen to an employee who fails a test. While prescriptive, this schedule should remain so concise as possible, in contrast to the industry-specific legislation that exists to date. It must be capable of general application across industries and employment sectors, and the more prescriptive detail that is provided, the less flexible such an instrument becomes. 
Once again, the science of testing has outpaced the legal response. We don’t seek to conclude the discussion, merely begin it. But our approach of a national response to a national problem through uniform state legislation presents, we suggest, a coherent, defensible and logical response that balances the needs of the employee working for, not at, the employer.
'How effective is drug testing as a workplace safety strategy? A systematic review of the evidence' by Ken Pidd and Ann Roche in (2014) 71 Accident Analysis and Prevention 154-165 comments
The growing prevalence of workplace drug testing and the narrow scope of previous reviews of the evidence base necessitate a comprehensive review of research concerning the efficacy of drug testing as a workplace strategy. A systematic qualitative review of relevant research published between January 1990 and January 2013 was undertaken. Inclusion criteria were studies that evaluated the effectiveness of drug testing in deterring employee drug use or reducing workplace accident or injury rates. Methodological adequacy was assessed using a published assessment tool specifically designed to assess the quality of intervention studies. A total of 23 studies were reviewed and assessed, six of which reported on the effectiveness of testing in reducing employee drug use and 17 which reported on occupational accident or injury rates. No studies involved randomised control trials. Only one study was assessed as demonstrating strong methodological rigour. That study found random alcohol testing reduced fatal accidents in the transport industry. The majority of studies reviewed contained methodological weaknesses including; inappropriate study design, limited sample representativeness, the use of ecological data to evaluate individual behaviour change and failure to adequately control for potentially confounding variables. This latter finding is consistent with previous reviews and indicates the evidence base for the effectiveness of testing in improving workplace safety is at best tenuous. Better dissemination of the current evidence in relation to workplace drug testing is required to support evidence-informed policy and practice. There is also a pressing need for more methodologically rigorous research to evaluate the efficacy and utility of drug testing.
The authors offer some cautions, commenting -
The lack of a sound evidence base for the efficacy of testing is at odds with the apparent growth in the use of testing as a workplace safety strategy. While the proportion of US employers who conduct testing has declined from a peak in the early to mid-1990s (Frone, 2013), indicating that some employers may no longer be convinced of the usefulness of testing, nearly half the US workforce report that their employer conducts some form of drug testing (Larson et al., 2007) and support for workplace testing appears to be increasing in other countries (Nolan, 2008; Pierce, 2012). 
There is no doubt that the growth in the prevalence of work-place testing is related to concerns about safety and productivity and advances in testing technologies in providing relatively reliable and objective indicators of potential past and recent use of most types of commonly used illicit drugs (Moore, 2011; Phan et al., 2012). However, the extent of support and interest in testing as a workplace strategy, in light of the poor evidence base for its efficacy, indicates that there may be other explanations for growth in testing. 
One alternative explanation may be successful marketing efforts by the drug testing industry. It has been estimated in the US and Canada that workplace testing is at least a $2billion a year industry and increasing (Grantham, 2012). Growth in the prevalence of workplace testing may also be due to compliance with new legislation and regulations. For example, the US (Frone, 2013), Europe (Pierce, 2012), and Australia (e.g., CASR, 1998) have introduced legislation mandating drug testing in particular industries. Similarly, many countries have occupational health and safety legislation and regulations that do not mandate testing, but contain provisions that may implicitly encourage testing. Hence, some employers may introduce testing in order to comply with relevant legislation and regulations regardless of their beliefs about the efficacy of testing. 
Previous research has also identified that workplace drug testing can perform a symbolic function by allowing employers to control employee behaviour and manage the reputation and image of the work organisation (Brunet, 2002; Cavanaugh and Prasad, 1994; Knudsen et al., 2003). For example, the introduction of drug testing in reaction to normative pressure from the media and public opinion concerning the ‘drug problem’ allows organisations to demonstrate values and concerns that are consistent with perceived social values and concerns of the wider community (Knudsen et al., 2003). Similarly, testing can operate as a social control mechanism that enables employers to reinforce the expectation that employees should not use illegal drugs (Borg, 2000). 
It is likely that all these factors have played a role in the increasing use of testing as a workplace strategy. As speculated elsewhere (Galea, 2013) drug testing is based on a logical and compelling idea (i.e., that testing can reduce drug related risk by deterring drug use among employees or identifying those that use drugs) and driven by wider social concerns regarding drug use, workplace drug testing has been implemented and support for it is growing regardless of the evidence base for its effectiveness.