» Drug testing - Legal and technical notes.

US Guidelines (Urine and Saliva testing).
Legal cases

US Guidelines (Urine and Saliva testing).

SAMHSA is the "Substance Abuse and Mental Health Services Administration", a department of the Federal Government in the United States.

Our own Australian Standard 4308 (Procedures for thecollection, detection and quantitation of drugs of abuse in urine) is loosely based on the guidelines published by this Authority.

In April of this year, this agency published their guidelines for workplace drug testing using specimens other than urine (eg Saliva, sweat, hair). Copies of this guideline can be found here SAMHSA guidelines 2004.pdf

To summarise these proposed guidelines for Saliva testing, this US Federal Government agency is recommending to collect a saliva and a urine sample at the time of collection (due to the scientific uncertainty surrounding a positive saliva sample)

The guidelines state (Federal register Vol 69, No 71 page 19676):

"In order to protect Federal workers from incorrect test results for marijuana, the department proposes that a second biological specimen, a urine specimen, will need to be collected under the current guidelines at the same time as the oral fluid [saliva] specimen is obtained, primarily for the purpose of testing for marijuana when the oral fluid specimen is positive for marijuana."

The guidelines also express an opinion on using 'Point of care' devices (ie on-site screening kits) in saliva testing. Page 19678 states:

"POCT testing of oral fluid [on-site saliva test kits] is most suited for situations that require quick, negative results such as in emergency/crisis management. It is most suited for reasonable suspicion/cause and post-accident. It may be least suited for random testing. Oral fluid is not suited for return to duty, follow-up testing and pre-employment" [my emphasis]

It is likely that these proposed US Federal government guidelines will have some input into any Australian Standard which will encompass saliva testing.

Legal cases

There have been some recent Industrial relations cases relating to drug and alcohol testing programs.

With our long experience in workplace drug testing, the scientists and technical experts at d:tec are occasionally called upon as expert witnesses in court actions, and in both of the cases available below, we had a direct input into part of the evidence submitted to the respective courts.

The Pioneer case can be downloaded here CR_164_Pioneer.doc, and the SA unfair dismissal case can be downloaded here SAIRComm5.pdf

These 2 recent rulings in Industrial relations commissions give an indication of the 'right" and the "wrong" way to go about implementing a Drug and Alcohol testing regime.

In November 2003 the WA IRC ruled on Pioneer Construction materials vs Transport Workers union in regards to a random testing program detecting drugs of abuse in urine.

One of the principal points of disagreement was the request of the union to employ a saliva based screening program rather than utilising the Australian Standard 4308 for the detection and quantitation of drugs of abuse in urine.

Submissions from both parties were heard, and the commissioner eventually ruled that in regards to using urine or saliva testing:

1. There is no standard in Australia to detect the presence of drugs in saliva but there is to detect the presence of drugs in urine.
2. There is no saliva testing kit currently available that reliably detects the classes of drugs which are more reliably detectable using the Australian Standard for urine testing.
3. In particular, saliva testing kits do not accurately measure the presence of cannabis in any meaningful way. This is most significant given .... that 43% of the positive results from its blind drug and alcohol testing at Pioneer in April 2003 were for cannabis.
4. At present, saliva drug testing presents a greater chance of an employee who does not have a drug in their system returning a positive saliva test, suggesting they do have a drug in their system, than there is with urine testing. It should be of concern to all employees that they may falsely be accused of having taken drugs.
5. The opposite also is true: there is a greater chance that saliva drug testing may show that an employee does not have a drug in their system when in fact they do. This increases the likelihood of not detecting an employee who is likely to be impaired by drugs at work and who poses a risk to themselves and fellow employees.
6. The chance of being falsely accused of having taken drugs is significantly less with urine testing because of the Australian Standard.

This ruling gives one of the clearest guidelines yet on a topic which is a matter of considerable discussion amongst the drug and alcohol testing industry in Australia.

d:tec is currently trialling several on-site saliva kits, and to a large extent our findings are consistent with the ruling of the commissioner. Many accredited laboratories in Australia are also of the opinion that saliva drug screening holds great promise, but is still an immature technology, with many questions regarding the collection methods and drug "cut-off values" of the on-site kits on the market. The lack of any Australian Standard makes comparing the accuracy and sensitivity of many of these saliva kits even more difficult for the non-toxicologist!

It is important to note as well the opinion of both the expert witnesses, that neither saliva nor urine testing is measuring impairment, but only recent exposure to the drug compounds being tested.

Hence, a good Drug & alcohol policy should not be built around "testing for impairment". This was highlighted by the second case, this time in South Australia.

Perkins vs Golden Plains Fodder was an unfair dismissal case which related to a situation which occurred in mid 2001. Although this was a more complex case, there were some similarities, with more expert testimony to the effect that a drug test on either blood, urine or saliva cannot be used as evidence for impairment, merely exposure. The fact that the companies' policy stated that the testing was to "detect impairment" meant that they were in some difficulty in defending their actions in the commission.

Also, there was considerable discussion regarding the "harsh and unreasonable" terms of the Policy. In particular, this policy saw the penalty for failing (or refusing) a single urine drug screen as instant dismissal. The commissioner found that this "one strike" policy was too harsh. This aspect of the ruling indicates the value of a good employee assistance program, and the value of having trial periods (eg self testing) and/or education sessions with the employees prior to any testing occurring.

If you would like more information, please contact our National Accounts Manager on 1800 331 139, or email enquiries@dtecaustralia.com.au