What’s the deal with workplace drug testing?

Thursday, 10 October, 2024.

Photo courtesy: Unsplash.

Workplace drug testing is an intrusion on personal privacy so no employer in Australia automatically has the right to drug test staff. But there are some exceptions on work, health and safety grounds.

For example, Australian air traffic controllers and bus drivers face the possibility of drug testing at any time because negligence and carelessness on the job can endanger both workers and the public. Other people – miners and crane operators, for instance – get drug tested because they regularly work with dangerous machinery.

Since workplace drug testing only tests for the presence of drugs in your body, not for your level of impairment, you can get caught out and lose your job if there are even tiny traces of alcohol or any illegal drug. It’s important to note that some drugs stay in your system for 24 hours or even a few days.

There was a legal case back in 2014 where a Sydney ferry worker fought to reobtain employment after he believed he was unfairly dismissed on the grounds of a failed drug test. The drug test occurred on a day where he was called in on short notice to cover for a colleague. He claimed he smoked weed as pain relief for a shoulder injury, and had done so the day before this shift. He ultimately lost the case.

It’s a useful reminder that even if you believe you have a legitimate reason for using an illegal drug it won’t always matter to your boss. In the eyes of your employer, you have simply broken the law and knowingly violated a workplace policy. This was before medicinal cannabis was made legal, which is discussed below.

In short: you’re definitely rolling the dice if you test positive for alcohol or any illegal drugs. Workplaces take this issue very seriously.

How long can different drugs be detected in your system after their use?

Unfortunately, it’s not possible to give an exact answer to this question. There’s no guaranteed time frame for how long a substance will remain detectable in your body. There are so many factors at play here: the type of test (saliva, blood or urine), the quality of the testing equipment, how long you’ve been using the substance (one-off use will likely pass quicker through your system, sustained use will stick around longer), your body weight, your fitness level and so on.

That said, we can offer a general guide, so long as you keep in mind that these are only estimates. As a rule of thumb: a urine drug screen (UDS) is generally more effective at detecting drugs in your system for a longer period of time than a saliva or blood test.

• Heroin and amphetamines are detectable for roughly 3 to 7 days after a hit.

• Benzos are detectable for 3 to 14 days after use (UDS can remain positive for benzos for longer than 2 weeks if patients are taking high doses of long-acting benzos such as diazepam).

• Coke can remain in your system for roughly 2 to 3 days.

• Weed usually remains detectable for 3 to 14 days, although UDS can remain positive for weed beyond this period in frequent and regular cannabis users (for example, for 4 to 8 weeks).

Can I refuse a test?

If your employment contract explicitly outlines a company policy requiring you to participate in random or regular drug testing, you need to comply. If you refuse, it could be argued to the Fair Work Commission that you refused to obey a lawful and reasonable direction given to you by your employer. This may be grounds for dismissal.

What if I test positive?

If you test positive, this doesn’t mean you’ll automatically be sacked. The Fair Work Commission has set down guidelines that employers must follow. Your employer must discuss with you that you tested positive and develop an action plan in response.

In most cases, if you test positive you will receive formal counselling. If you continue to fail future drug tests, your employer may then take steps to fire you.

What if the results are wrong?

It’s widely recognised that drug tests are not 100% accurate. In March this year, major NSW hospitals including Concord Hospital and the RPA introduced new language standards for urine drug screening results: results previously recorded as “positive” are now described as “non-negative”. It’s a recognition by the medical establishment of the frequency of false positives.

If you believe a positive result is wrong, you can ask to be retested. You also have the right to challenge a decision you feel is wrong. If you are a union member, you may be able to get assistance from your union or you can speak to a lawyer for legal advice. The Community Legal Centre website has a list of where you can get free legal advice. Just make sure you sort your own drug test quick smart (that is, the same day or next day at the latest) as substances can enter and exit our bodies quickly. You can present a second test to your employer or an industrial court or tribunal, but it’ll need to be done very soon after the first official test. 

What if I use medicinal cannabis and work somewhere with drug testing?

There isn’t a lot of case law history when it comes to medicinal cannabis in the workplace. It’s a real grey area. In one case, before the courts in 2020, the Fair Work Commission (FWC), the industrial relations tribunal that deals with these employment issues, found a Sydney Trains worker was unfairly dismissed for breaching a workplace drug and alcohol policy because the Sydney Trains’ “zero tolerance approach” to medicinal cannabis was inconsistent with its disciplinary policies, which required mitigating circumstances to be considered. In a more recent case, the FWC upheld an employer’s decision to sack a worker because he failed to disclose he was using medicinal weed. So you never know!

But as things stand drug testing checks for the presence of drugs, not impairment, so it doesn’t matter if you take a CBD weed product with no THC in it (CBD is an ingredient in the weed plant with health benefits that doesn’t get you high, while THC is the ingredient that makes us stoned). Testing will show you have weed in your system and it’s likely that’s all that matters to an employer.

Politicians, lawyers and activists have expressed concerns that the hardline stance of mining companies like Rio Tinto on medicinal cannabis is unnecessarily and unfairly discriminatory. Some argue onsite drug testing is also pushing miners towards meth use because this drug exits the body quicker than a lot of other drugs.

It’s best to check with your union if you’re worried your weed script could impact your job safety and drug test results. If you feel comfortable and trust your employer, you can also approach your manager about this issue.

For more information about workplace drug testing, it’s worth consulting this NUAA guide or calling our Peerline. Peerline is a confidential peer-run phone service dedicated to supporting people who use drugs, who are on the OTP or who are seeking treatment across NSW. Call 1800 644 413 or email peerline@nuaa.org.au.