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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Urine vs saliva testing

Urine vs saliva testing
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For urine-based workplace drug testing to be valid, an employer's policy should avoiding stating that it is required in order to determine impairment, say two Australian lawyers.

Sam Witton and Cormack E. Dunn, from Herbert Smith Freehills, have reacted to a recent decision of the Fair Work Commission by outlining four key points for employers who wish to tread a valid path between the use of urine and saliva testing.

An employee of AWH Pty Ltd was sacked for refusing to undergo a urine test, and the Commission found the company had acted reasonably. The employee appealed on the grounds that AWH's policy only used urine testing, which gave some indication of historic drug use but was not good at detecting current impairment.

A full bench of the Fair Work Commission upheld the original decision, on the grounds the company's policy was not confined to testing for impairment, and that it made a distinction between the consequences of a failed urine test as distinct from a failed saliva test.

Witton and Dunn say the lesson of the case is that employers, when writing a drug testing policy, should:

  • State that testing is for the purpose of detecting drug use per se (rather than saying it is for detecting impairment).
  • Acknowledge urine testing still has a place because its detection of past use serves to identify people who might pose a future risk to health and safety;
  • Require employees to comply with the drug testing policy;
  • Set out different disciplinary consequences for a positive test of a urine sample and a saliva swab.

"Recently there has been a trend for the Courts to favour saliva testing over urine testing, particularly as the reliability of saliva testing has improved," they write. "This case demonstrates urine testing still has a place. However, this requires employers to ensure their policy [carefully] sets out the reasons for the testing and the proper circumstances when the testing may be applied."

People Mentioned:
Sam Witton; Cormack Dunn
Organisations Mentioned:
Herbert Smith Freehills
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From Alert24 - Safeguard Update

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