TDDA – Victoria Parliament Inquiry into Workplace Drug Testing – October 2024

Oct 10, 2024 | Content by TDDA

Introduction:

Workplace safety is paramount for every industry, and drug testing is a vital component of maintaining a safe and productive environment. At The Drug Detection Agency (TDDA), we believe that workplace drug testing not only enhances safety but also ensures compliance with legal standards. However, it is essential that testing is carried out in a manner that is both legally defensible and fair, and that the testing process is managed by qualified, independent third-party providers.

The recent “Inquiry into Workplace Drug Testing in Victoria” has highlighted the growing challenges surrounding drug testing, especially in light of the increasing use of medicinal cannabis. These challenges make it even more important that businesses adopt best practices in drug testing to ensure both safety and fairness.

The Importance of Drug Testing in the Workplace:

Drug testing plays a critical role in identifying potential risks to workplace safety. The presence of drugs in an employee’s system can lead to impaired judgment, slower reaction times, and an increased risk of accidents. This is particularly true in industries with high safety risks, such as mining, construction, and transportation.

The inquiry into workplace drug testing in Victoria emphasised that industries with Alcohol and Other Drug (AOD) policies have established frameworks for ensuring safety. However, the absence of mandatory testing regulations in other industries poses a challenge, underscoring the need for voluntary adoption of drug testing programs to ensure workplace safety across sectors.

One of the key findings of the inquiry is the difference between testing for the presence of drugs and testing for actual impairment. Current testing methods typically detect the presence of substances like THC (from cannabis) identifying the risk of impairment as opposed to confirming impairment. The inquiry thought this was particularly relevant for how employers may manage employees using legally prescribed medicinal cannabis, and whether they are or are not impaired.

However, an alternative position was set out by the Fair Work Commission (FWC) in the 2015 CFMEU vs. Port Kembla case. In this ruling, the FWC found that the detection of a drug at or above the levels set by the relevant Australian Standard “must represent a measure that can be logically inferred to have some impact on capacity to perform work-related functions, irrespective of the time period that may have elapsed since the drug was taken.” This finding reinforces the notion that, from a safety and legal standpoint, the presence of drugs above these cut-off levels implies a potential risk of impairment.

The FWC’s position is particularly significant in industries where workplace safety is a top priority, as it suggests that a positive drug test result—exceeding the Standard cut-off—can be associated with an increased safety risk. While current testing may not directly measure impairment, the ruling indicates that even without clear evidence of present impairment, the detection of drugs at certain levels can still reasonably imply an impaired ability to safely perform work.

While medicinal cannabis users may or may not exhibit the same level of impairment as frequent cannabis users, the FWC’s stance aligns with the need for precaution in safety-sensitive roles. This mirrors concerns raised by the Police Association of Victoria as part of the inquiry, which emphasised that even minor impairment from THC could lead to catastrophic outcomes in high-risk industries, stressing the need for drug policies that account for industry specific safety requirements. The FWC’s ruling supports the notion that drug testing cut-off levels are not just about detecting presence, but about preventing workplace safety risks by managing potential impairment, regardless of the time that has passed since the drug was consumed.

In summary, while concerns about distinguishing between mere presence and actual impairment are valid, the CFMEU vs. Port Kembla decision reinforces that workplace drug testing cut-off levels serve as a practical measure to infer potential impairment and protect workplace safety.

Ensuring Legal Defensibility and Fairness:

In light of the complex legal and social dynamics surrounding drug testing—particularly with regard to medicinal cannabis—businesses must ensure that their drug testing practices are legally defensible. This means being aware of and aligning testing with relevant legislation, whether that be State or Federal.

The rise in medicinal cannabis use has prompted significant discussion about how to balance the rights of employees with the need for workplace safety. The inquiry raised several important points regarding the impairing effects of medicinal cannabis, particularly its primary psychoactive compound, THC. These effects can last up to several hours when taken orally, and traditional workplace drug tests may detect THC long after the impairing effects are obvious to either the employee or the employer.

The inquiry also highlighted concerns that current laws might discriminate against employees who are using medicinal cannabis legally prescribed for medical conditions. Reforms were suggested to prevent discrimination and to provide clearer guidance on how employers should manage medicinal cannabis in the workplace.

At TDDA, we believe that as testing technologies and regulations evolve, it will become increasingly important to continue the discussion around impairment and the presence of substances like THC. While medicinal cannabis may be legally prescribed, ensuring that employees are not impaired during work hours remains a critical aspect of workplace safety. TDDA’s approach to workplace drug testing is grounded in fairness. We recommend that employers adopt comprehensive AOD policies that include provisions for safety aligned workplace drug testing where appropriate. This ensures that employees are treated fairly and that testing is only conducted when there is a legitimate concern about workplace safety.

One of the core principles we uphold at TDDA is that workplace drug testing should always be carried out by independent, qualified third-party providers. Independent testing ensures that results are unbiased, accurate, and legally defensible in the event of a dispute. By outsourcing drug testing to professionals, businesses can avoid potential conflicts of interest and ensure that their testing processes comply with legal standards and best practices. This is especially important in high-stakes environments where safety is critical, and any ambiguity in testing procedures could lead to legal challenges.

Recommendations for Employers:

In light of the findings from the “Inquiry into Workplace Drug Testing in Victoria,” and the FWC’s position in the CFMEU vs. Port Kembla case, TDDA recommends that employers take the following steps to enhance workplace safety and ensure fairness in drug testing:

1. Implement Comprehensive AOD Policies: Develop and enforce clear policies that include drug testing provisions based on sound and robust processes.

2. Focus on Drug Awareness Training and Education: Prioritise comprehensive drug awareness training and education programs for employees. These programs should help both supervisors and workers understand the risks associated with drug use, including both legal and illegal substances, and how they can impact workplace safety. Special attention should be given to educating employees on the effects of medicinal cannabis and other substances, ensuring they are aware of potential impairment risks. By fostering an informed workforce, employers can promote a safety-conscious culture where employees are equipped to make responsible decisions regarding drug use and understand the importance of maintaining a safe work environment.

3. Utilise Independent Third-Party Providers: Ensure that drug testing is carried out by independent, qualified professionals to guarantee accuracy, fairness, and legal defensibility.

4. Stay Informed on Legal Developments: Monitor updates to legislation and workplace guidelines, especially in relation to medicinal cannabis, to ensure your policies remain compliant with the latest requirements.

5. Provide Employee Support: Consider offering resources and support for employees who are prescribed medicinal cannabis or other medications, ensuring they can perform their roles safely without fear of unfair discrimination.

Conclusion:

Workplace drug testing, when conducted properly, is an essential tool for maintaining a safe and productive environment. The Inquiry into Workplace Drug Testing in Victoria made several key recommendations, including suggesting updating WorkSafe guidelines to account for medicinal cannabis and to differentiate between THC (which may cause impairment) and CBD (which does not). Another recommendation includes better guidance for employers on how to handle medicinal cannabis in workplace drug policies, especially in non-mandated industries.

At TDDA, we are committed to supporting businesses in implementing drug testing practices that align with these recommendations—ensuring that they are not only effective but also legally sound and fair. By working with independent third-party providers and focusing on verified and robust workplace drug testing processes, employers can enhance workplace safety while protecting the rights of their employees.

For more information on how TDDA can help your business navigate workplace drug testing, please contact us or visit our website.

Glenn Dobson
CEO
The Drug Detection Agency Group