Disclaimer: I am not your solicitor, my opinion should not be construed as legal advice or as a substitute for legal advice from a registered solicitor. The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.

What gives a workplace the right to test me?

A workplace has a duty under the Work Health and Safety Act 2011 (NSW) - Hence WHS Act, to provide a safe workplace for themselves/PCBU, workers, contractors and anyone else who may visit the site (i.e. customers). A worker also has WHS obligations under Section 28 of the WHS Act to take reasonable care for their own safety (which may include not being under the influence of drugs/alcohol), take reasonable care that their acts don't impact the health and safety of others (such as being reckless with tools, driving dangerously or operating machinery whilst fatigued/drunk etc.)

The worker also has an obligation under Section 28(c) of the WHS Act to comply with any reasonable instruction that is given by the PCBU (their boss) and under 28(d) to comply with any reasonable procedure or policy issued by the PCBU.

Whilst rarely used, failing to comply with a reasonable policy could get a worker a fine of up to 575 penalty units (Section 33, WHS Act) which is $63,250.00.

So, if your workplace determines that it would be unsafe to have a worker onsite affected by drugs (including alcohol), a determination that could apply to a CBD law firm or a construction site, then they can usually test you provided three criteria are met;

  1. You are a worker. Under the act worker means employees, contractors/subcontractors, employee of a contractor/subcontractor, labour hire worker, apprentice, volunteer etc. (Section 7)

  2. The company has a compliant drug/alcohol policy

  3. You have been made aware of this policy.

Should my boss test my hair, blood, urine or saliva?

Personally, I find saliva is the most fair test as it is a much more reliable indicator of recent drug use and potential for impairment compared to hair or urine. Hair follicle testing is usually done in a situation where an employee needs to show compliance with the law at all times and integrity, so usually is reserved for police officers and lawyers at larger firms.

Your employer, within reason, can test any matrix provided it is within a policy you have accepted. I would find blood an unacceptable matrix for random testing due to the potential for adverse effects (i.e. systemic/local infection, phlebitis etc.) however it may be justified for pre-employment or post-accident tests in a clinical setting.

Urine and saliva are the go to for pre-employment and random drug testing. I personally prefer to do oral fluid testing.

Can I appeal drug test results?

Usually, yes.

A field drug test does not indicate whether or not you are affected by drugs, only whether or not there may be a presence of a drug in your system. This is called a not-negative. I think it would be foolish for any employer to take disciplinary action against an employee based on a field test.

When a donor (worker) returns a not-negative sample, I take a second sample to be analysed at the laboratory which is NATA accredited. The turn around is usually 1 - 3 days depending on how busy they are, but this will produce an accurate test that will show if you are above or below the limit for drugs.

Much like alcohol there is a cut off limit. For instance in a heavy truck you can usually be 0.019 g/100mL BAC and legal to drive but the moment you hit 0.020, you are over the limit.

The same is true with workplace drug testing. An employee can have 24 ng/mL of Methamphetamine in their system and just like a drink driver, I would have to concede they are under the limit. But once they have 25 ng/mL or more in their system, they are over the limit and therefore positive.

If you think the tests are wrong, you have every right to have the sample retested by the reporting laboratory or any other NATA accredited laboratory of your choice. However you cannot appeal by simply using a pharmacy bought indicator test.