Message in a Bottle

Norml News 1994 Spring

It is unlikely that New Zealand will ever develop the kind of "bizarre obsession with seizing and searching the bodily excrements of citizens" that has gripped America, according to journalist Oliver Steinburg. But urine sampling for illicit drugs is definitely here.

Its introduction has gone largely unnoticed by the New Zealand public. Random sampling of employees is a practice that is growing. Yet the wiggly questions of whether it is legitimate for employers to test for drug use, and if so who and how, are only now being raised.

"It's a real can of worms," says Felicity Lamm from Auckland University's Management Studies Department. "We need to develop strict guidelines covering it, and we need to work them out with employers and employees consultatively. It has to be seen as a safety issue."

How much of a problem drug use at work really is, is difficult to say. The Employers' Federation, for example, is not willing to take a position on it. "Most of the figures seem to be based on research from the USA and Australia," says Anne Knowles. "Whether it is possible to extrapolate to New Zealand or not I don't know."

Indeed little research has been done in this country on use and abuse of drugs. The latest survey by Casswell and Black in 1990 simply confirmed what any avid party-goer in the country already knew tobacco and alcohol are our favourite recreational drugs, closely followed by marijuana. But the fact that an awful lot of New Zealanders use at least one illicit drug does not necessarily mean that we have a workplace safety problem. Or that we abuse drugs.

There are, of course, people who would say that any use of illegal drugs is abuse. Which is a bit like saying that all couples who don't have a marriage license are promiscuous. For the purposes of workplace drug testing, the generally agreed definition relates to whether working performance is impaired.

"(Drug) tests are normally set at a 'cutoff' level. We're not looking for traces," says Sue Nolan of the Institute of Environmental Science Research (ESR) of what was the DSIR. "You're looking at a level that is reasonably significant, and could be consistent with impairment. But urine testing isn't going to tell you whether that person was impaired at the time. That's just not possible".

Leaving aside the proverbial 'stoned jumbo jet pilot' for the moment, the question of whether drugs do really affect workplace safety, or productivity, in New Zealand is difficult to say. Even the overseas research is contentious. It has been claimed that work-site drug abuse has led to absenteeism, accidents, reduced productivity, theft and vandalism. The belief that drug use significantly impacts on work performance, however, "is one which has limited and even contradictory evidence" say Allsop and Phillips (1992) in a book called 'Drug Problems in Society'.

Safety, as opposed to performance, is more clear-cut. The strongest support for drug testing is in those areas where safety is a real issue - either because of risk to the public, such as for transportation, or in high-risk industries such as power utilities.

Research done on commercial pilots in 1985, in fact, suggests that marijuana impairment for very complex tasks such as flying a jet, can continue for up to 24 hours. Clearly we don't want our jet pilot getting stoned the day before. Randomly testing pilots for drugs, however, is only going to be useful if aviation authorities are finding that accidents are being caused by pilots who used illegal drugs. Similarly, if tests conducted on people after accidents in other industries indicate that illegal drugs were present, random urine sampling becomes more attractive.

There is no official police line on the usefulness of randomly drug testing transport workers in order to reduce accidents. Snr Sgt Steedman of the Traffic Safety Branch of the Auckland Police, however, is not enthusiastic. He sees random drug testing as too expensive, and unreliable to indicate if the person was impaired.

"Testing (by the transport company) would only be useful if widespread. But the firm is going to experience the same problems as the police. If we could find a system that could be done readily and was accurate, we'd be using it now."

Many people have an image of truckies snorting speed and munching on no-doze like candy. But Mr Steedman doesn't see illegal drug use in the transport industry as much of a problem in NZ, due to the short distances that truckies have to drive compared to, say, the USA and Australia. "In all my time on the force I've never heard of anybody being charged with taking drugs to keep awake. If I did I'd be very disappointed. There's just no reason for it here."

An important point to do with impairment that comes up again and again is that most of the research on drug abuse being cited does not separate the effects of alcohol from other drugs. Alcohol is more widely used than any of the illegal drugs. More is known about the impact of alcohol on work related behaviour than for any other drug. Yet drug testing in the workplace focuses on illicit drugs only.

So if drug abuse is a problem in the work place, is urine testing for only the illegal drugs coming to grips with the problem?

"No, it's not," says Felicity Lamm emphatically. In fact the Employment Assistance Programmes, designed to pick up and assist with addiction problems among workers, are picking up alcohol problems to a much more significant degree.

Anne Knowles agrees. "Alcohol is probably more prevalent. It's also more detectable - you don't have to go through such intrusive tests."

Drug testing isn't very widespread at the moment" says Sue Nolan. One thing that does concern her, though, is that testing is done properly. Most testing being done at the moment uses just a screening test, which only indicates the possibility that a drug is present. A more sophisticated test, such as Gas Chromatography Mass Spectrometry is needed to confirm that the drug is present. In fact screening tests are so unreliable, on their own, for indicating presence of a substance that a worker dismissed on the basis of such a test may be able to make a case for unfair dismissal.

ESR is the only organisation offering Mass Spectrometry for this type of drug test, and they supply a full testing package - which includes special sampling kits, screening test, and confirmatory test. The test screens for five classes of drug: Cannabis and its byproducts, opiates, amphetamines, cocaine and benzodiazephines (tranquillisers and sedatives). ESR has produced a briefing paper on drug testing in the workplace, which they have taken to employers and union representatives, as well as the Privacy Commissioner and cabinet ministers.

The briefing paper states that drug abuse is linked, among other things, to 40% of workplace deaths and up 50% of injuries. However it is unclear in the paper whether these figures include the effects of alcohol. On being questioned, Ms Nolan said that "some of the figures are mixed, and include both alcohol and other drugs".

"It is recognised that alcohol is the biggest drug problem in NZ. But alcohol has to be treated quite differently. Number one, it is legal, so the moral issues and so forth are, quite different. We wouldn't recommend doing alcohol urine testing because a positive result is very difficult to interpret and doesn't mean an awful lot. So we would recommend a breatha1izer test on the spot".

That many of the statistics on the problems of workplace drug use include figures for both alcohol and illegal drugs can easily lead to misunderstanding. Nevertheless proponents of urine testing for illegal drugs are adamant about its benefits. ESR, for example, quotes figures from a NZ case study to argue the benefits to employers.

There is some concern, however, that this report is not open to scrutiny. 'The study, which claims an 81% drop in drug related incidents, a 75% drop in drug related dismissals, and various savings after a period of urine testing, has never been ' published, and is not subject to peer review. Thus legitimate concerns remain about how the study was done, and whether it is valid to make such claims based on the data collected.

"If people are quoting studies that are not open to scrutiny, that is a major problem," says Peter Davis from the Department of Community Health at Auckland Medical School. "Drug companies do this all the time, say that they have studies on file, in order to sell pharmaceuticals. It just has to be suspect. If someone is touting for business and also claiming to be an expert on the subject, you really need a second opinion."

One doesn't have to look too far for other points of view. For example, the Privacy Committee of New South Wales, in their 1992 Drug testing in the workplace report, states that "the evidence suggests that companies should not assume that a drug testing programme will be economically beneficial" and suggests other methods, such as monitoring performance indicators.

Similarly, if safety is the issue then monitoring will need to be done for legal drugs as well. Drug testing "may be a red herring to draw attention away from other, more significant issues, like stress, long working hours, and inappropriate or dangerous equipment and toxic materials" the report says.

Jane Orsman from the Council of Trade Unions (CTU) also has reservations. The CTU has viewed a presentation from ESR but is unwilling to comment in detail at this stage.

"We are really just starting to pull in the studies, both in New Zealand and from overseas," she says. But while the CTU does not have a policy on drug testing yet, some areas are of potential concern. The possibility of misuse, and the inability to tell whether the person was impaired at the time, top the list.

"There is also the question of, if you have an outspoken union delegate, could substance abuse testing be used by employers maliciously?"

Like most of the people trying to deal with the complexities of the issue, Jane Orsman is very cautious about saying much at all. A major concern is that the, introduction of urine testing be considered widely and carefully.

"With the changes in the Accident Compensation provisions employers are looking at cutting their ACC premiums. Substance abuse testing is being marketed as one way of doing this. There is a danger that this may lead to an increase in the use of drug tests without a full examination of their effectiveness, or of the other issues involved".

One thing that needs careful consideration is whether urine sampling is a legitimate invasion of privacy. The Privacy Commissioner is currently investigating a complaint relating to a pre-employment drug test. Blair Stewart, from the Commissioner's Auckland office, says that they are "very concerned" about the issue.

The Privacy Act of 1993 raises a number of important considerations regarding urine sampling. These can be grouped into three areas:

1/ The purpose of collection Under the Privacy Act, employers should only collect information (such as what's in your urine) if it relates to the 'functional activity' of the worker. Employers should not use it to enforce personal moral beliefs. "Of course, one of the issues with testing for cannabis is that it cannot show impairment," says Mr Stewart. It may be that other considerations than impairment need to apply, such as where workers are in charge of quantities of drugs with a potential for misuse.

2/ The means of testing The Privacy Committee of New South Wales expressed concern in their report that samples were often collected in a demeaning manner, due to the need to stop tampering with the sample.

3/ The use and disclosure of the information collected Again, the potential for an employer to target individuals for drug testing if they want to dismiss them is of concern.'

Mr Stewart comments that, in a sense the Commissioner welcomes complaints about such matters, as he is unable to rule on a particular privacy issue unless it is brought to his attention.

Similar concepts, if different terminology, govern how the Employment Tribunal views the legitimacy of urine testing. "Employers might have a legitimate interest in the activities of employees outside of work time," says Yvonne Oldfield of the tribunal. "It depends on the form of employment"

The rule of thumb is that if an action has a direct bearing on the work that a person does, there is an interest. This can be in the form of workplace safety, or if the person occupies a position of trust where they must be blameless.

A sample can only be obtained by consent though. Either there must be provision for testing in the employment contract, or consent must be given at the time. Ms Oldfield warns that "if an employer sought to obtain a sample by threats, for example of dismissal, they would be on very dodgy ground".

It is unclear how many people's employment contracts at present might include provisions for drug testing. How many people might in the future be forced to include such provisions is even more difficult to say. The decision of the Privacy Commissioner over the complaint mentioned above is likely to give a very strong indication of the direction that urine testing in the workplace will go. Interested parties will await his report with anticipation. In the meantime, though, we can expect to see the start in New Zealand of an industry that has already swept the States TOXICLEAN FLUSH SYSTEMS, clean urine guaranteed!