Psychedelic-assisted therapy and medical cannabis are becoming more and more mainstream. This can cause a problem for people that have ‘random’ drug tests at work, or have pre-employment drug screens. As an employee you do have the right not to be discriminated against because of the medication you take, if it’s not getting in the way of how well you do your job. But the law is still very much still stuck in the 1970s when it comes to new therapies.
Let’s start straight off by saying your employer needs your explicit consent to run a drug test. They want to take something out of your body under what could potentially be very sensitive circumstances, and legally speaking, if you refuse, they can’t touch you (or your pee/hair/whatever they’re taking a sample of).
Everything from requesting you submit to a drug test to specimen-collection and what your employer does with the results must meet the standards outlined in AS/NZS 4308:2008 for urine and AS/NZS 4760:2019 for saliva.
That means your employer and the people doing the actual collection and testing have to treat you with dignity and respect. This includes your consent. If they don’t, you can talk to the Privacy Commission about what your options are.
If you refuse to take the test, however, your employer is legally allowed to either fire you or refuse to hire you, if they have a pre-existing drug testing policy. This is very dependent on what the job is, and whether or not your employer has stated in your employment agreement that you have to submit to a drug test though.
This is, of course, ridiculous.
The metabolites of most of the known illicit substances last for days in your system after any impairment happens. The correlation = causation for impairment in drug tests is terrible science. It’s absolutely not something that should influence a decision if someone isn’t actually impaired. We got spicy about this in our roadside drug testing article last year. We guess the thinking in this is if you got ‘impaired’ recently enough to fail a drug test (i.e. within the last 48 hours) then you might do it again? Doing things in your own time? Without thinking of your job? In this late-stage capitalism?! *gasp* How dare.
Your employer needs to know if you’re taking prescription medication before the drug test
If your substance is prescribed, then you may not be taking a strong enough dose to be ‘impaired’. This doesn’t seem to matter though as people get fired for breaching their workplace’s policy, rather than being actually impaired at work.
The law as it is at the moment is still very anti-illicit substances, even if those substances are legally obtained and legally prescribed. Employers mainly use urine/saliva drug tests to decrease the risk of impairment, rather than decrease actual impairment in the workplace.
Disclosing can be a bit uncomfortable because it puts you in a super vulnerable position, especially if the test is part of a job application. From a legal standpoint, transparency is the best policy. Disclosing medication is part of workplace good faith, which is the framework of principles a healthy workplace works on.
Talking about health, particularly mental health, with an employer can be a particularly difficult experience. You don’t know if they’re going to be sympathetic or judgmental or if the disclosure is going to have an affect on the way they treat you. You don’t know if disclosing your medication will prevent you getting a job. There are protections in place if the way you’re treated at work changes for the worse because of your disclosure, though.
What the unions say
According to the NZ Council of Trade Unions (NZCTU), drug testing in the workplace should focus on impairment, especially when it comes to prescription cannabis:
“Prescription drugs, including medicinal cannabis, are legal. They can also cause impairment at work. Again, impairment should always be the focus of drug and alcohol policies.
It is important to structure work to ensure every worker is safe. It is not helpful to focus on moralistic arguments around drugs and alcohol.”
Basically, unless you’re causing accidents or messing up at work, and there’s a clear link between your meds and your performance, your prescription substances can’t be used against you in a drug test if your employer already knows about them. Disclosing might be uncomfortable, but it’s important.
What does ‘impaired’ mean?
We couldn’t find any definition of impairment in the workplace that wasn’t related to different types of disability. That wouldn’t be appropriate here, so we’ve gone with the Waka Kotahi definition of impairment for driving.
You’re considered legally unsafe to drive if you:
- feel drowsy or sleepy
- Have blurred vision
- Have a headache
- Are feeling weak
- Have slowed reactions
- Feel dizzy
- Have any nausea, feeling sick
- Are unable to focus or pay attention
- Are easily confused
- Have slurred speech
- Have trouble forming a sentence
- Are feeling wired and overconfident (although you may not notice yourself).
These symptoms can be caused by a number of things, including being tired, stressed out, overheated, or dehydrated. This could also be you on medication. That being said, it could also be you if you don’t take your medication.
The important thing to remember is that your boss can only test you if your employment agreement allows for it, and even then only in the circumstances outlined in the agreement. Unless your agreement allows for random testing, they can’t just pull you out of a normal day’s work for a test with no justification.
I wasn’t impaired and I failed my drug test because of my medication. Now I’m in a disciplinary process. What do I do now?
Under non-medicinal circumstances, if you fail your drug test your employee might want to put you through some form of rehabilitation therapy as a condition of staying on in your job.
If you fail your drug test because of your medication, whether it’s opioids, cannabis, benzos, or whatever, the right course of action is to
- Show your employer your prescription
- Ask to see the company policy on drugs
- Read and acknowledge the policy
- Apologise for the mix-up
- Try and remedy the situation as best you can
Unfortunately as we said earlier, the law still has a heavy anti-drug bias. Remedying the situation might not be as simple as your employer accepting your prescription and letting you go on your way. You might want to consult a lawyer to see what your options are.
We’re already starting to see employers being taken to court for unjust dismissal when they’ve fired people for medical cannabis. If you’re part of the union in your workplace, they can give you legal advice. If you’re not part of the union in your workplace, or there’s no union in your workplace yet, you can find one to join on the NZCTU website.
If you would prefer to handle things on your own, Community Law has free legal advice and can help you navigate the situation.
While the case of PEX vs. Lyttleton Port Company 2022 was unsuccessful, it was the first of its kind in Aotearoa, and was working on a foundation of outdated precedents. We’re only just starting to build the legal precedents which will help employment law grow and change to become more fit for purpose.
A word about drug testing in Aotearoa from the Privacy Commission
While your employer can legally ask you to pee in a cup, the Privacy Commission suggests they proceed with extreme caution, and do everything they can to avoid implementing drug testing. If they do decide to implement drug testing, they should think about the following:
- Consider carefully whether there is, in fact, a drug problem in your workplace;
- Assess the nature and extent of the problem;
- Be certain that the drug taking could impair an employee’s ability to work and that they are a safety risk to themselves and/or others; and
- Consider whether drug testing is the most effective way of dealing with a suspected drug problem. There could be a less intrusive alternative that may be just as or more effective, such as supervision, a drug education programme or confidential counselling service.
Types of drug tests
There are three different kinds of test an employer may feel entitled to make you do.
A negative drug test can be a condition of someone hiring you if it’s a ‘safety sensitive’ position. This means you’ll be working where, if you do your job wrong, you or someone else could get badly hurt or potentially die.
These tend to be positions like drivers or pilots, or anything where you operate heavy machinery like a sawmill, mine, or factory.
Individual/specific drug testing
This is the kind of test your boss would ask you to do if you messed up. Your boss can ask you for one of these if you’ve caused an accident or near miss, or if you’ve been behaving in a way that makes your boss think you’re under the influence.
“Random” drug testing
This is the kind of drug test that really gets our backs up. This is supposed to be ‘suspicionless’ testing where nobody feels targeted by being tested because it apparently happens to everyone equally. Except then everyone feels targeted and nobody feels trusted and that creates a pretty horrible working environment.
Workplace drug testing. Not even once.
We’ve already had a bit of a rant about workplace drug testing and how it doesn’t reduce drug harm and basically how unethical it is. But because it bears repeating, we’re going to explore it in a bit more detail.
Presence of a substance is not impairment
The main reason employers give to defend random drug testing is safety. If you’re impaired at work and have to handle heavy machinery or vehicles or dangerous chemicals, then you could cause an accident and maybe hurt yourself or someone else.
Except substances can still be present in your body after they’ve dropped below the level where they’d have a noticeable effect on you. It can be days after you’ve taken your substance and it can still be detected in your blood, hair, or urine.
How long substances can be detected in urine
- Alcohol: 7-12 hours
- MDMA: 3 days (Healthline)
Cannabis : 3-30 days, depending on how often and how heavily you’re using it. (Mayo clinic)
- Cocaine: 2-4 days (Mayo clinic)
- Methamphetamine and amphetamine: 48 hours (Mayo clinic)
- Opioids: 2-3 days (Mayo clinic)
- Benzos: 5-10 days, depending on if they’re long-acting like Valium or short-acting like Xanax (Ark Behavioural Health)
Sometimes ‘random’ isn’t exactly random
Racism? In drug policy? It’s more likely than you’d think. An American article released last month showed that Black workers were 15-20% more likely to have drug testing in their workplace than Hispanic or White workers. If they tested positive, Black and Hispanic workers were more likely to be fired than White workers.
Read the full article at Science Direct
Is it the same here? It’s hard to tell. We couldn’t find any employment data for workplaces and their drug testing policies in Aotearoa.
What we did find was some correlations between industries that are known for drug testing their employees and Māori employment.
According to the Work and Income website, the industries that commonly test their employees are fisheries, horticulture, transport, and forestry. As of the December 2022 MBIE Labour market survey, 7% of Māori were employed in agriculture, fisheries, forestry, and mining, and 6% were employed in transport, warehousing IM, and communications. So Māori are more likely to be working in industries that test their workers, and thus more likely to be drug tested.
It’s bad science
Not just in the mechanics of the test, but in the way the apparent success of drug testing has been reported.
The tests that workplace drug testers use will show the detection of drug types, but they aren’t sophisticated enough to test for specific drugs. If you fail an initial screen your sample may be sent away for further testing, which can cause a LOT of undue stress if you’re on prescribed medication.
Medications for the following can throw false positives:
- ADHD (Vyvanse, Ritalin, Dexedrine, etc.)
- Depression (Fluoxetine)
- Anxiety (Most beta-blockers, sertraline)
- Heartburn (Pantoprazole)
- Pain (codeine, tramadol)
Does drug testing keep workers safe? Not really.
For such a widely-used tool, the research on workplace drug testing is shockingly poor. A 2014 reviewed research done between 2009 and 2013 into drug testing. That research reported positive results from drug testing in either decrease of workplace accidents or injuries. The review showed that each study was deeply flawed, including
- No random control studies, so they couldn’t definitely say testing their employees was the cause of the decrease of accidents/injuries
- Methodological weaknesses like low sample numbers and using ecological data (what’s happening in the test subject’s social, political, physical environments) to evaluate individual behaviour change,instead of using the person’s actual behaviour.
Only one study was methodologically rigorous.
Another review done in 2015 looked at 5,961 studies. Of those, only two were scientifically rigorous enough to qualify as actual research. TWO. out of nearly 6,000.
Read the review on the Sage Journals website
And then there’s this review done in 2020 that showed that while the scientific methods had improved a little bit, the results showing positive effects from workplace drug testing were still under 50%.
Read the article on the National Library of Health website
Basically we have 14 years’ worth of data that doesn’t convincingly show that workplace drug testing reduces workplace accidents or increases workplace safety.
(making it into an expensive exercise in safety theatre, that undermines employment relationships without achieving any of the things it’s supposed to achieve)
So why test workers for drugs?
Drug testing is an industry. It’s an industry that makes bank off the paranoia of the war on drugs.
Good employers want their staff to be safe. Testing for impairment is harder than testing for drug use. There are drug testing companies out there telling a compelling story that lines up with society’s myths about the evils of drugs. So it’s easy for an employer to contract one of those drug testing companies, believing they are doing the right thing.
Unfortunately, drug testing is easy but ineffective and testing for impairment is harder but more effective, as well as being fairer and more legally justifiable. So we’d ask employers using drug testing to look at the evidence and *actually* do the right thing.
As for the companies offering workplace drug testing… some of them were also offering meth testing for supposedly contaminated housing – along with a paid cleanup service. They were basically scaring people into testing their houses then raking in the bucks for “essential cleanup” for detection of miniscule amounts of meth – amounts that were later found to be of no risk to anyone. All it took was for people to start looking critically at the tactics being used to sell the service, and comparing it with the evidence.
The tactics used to sell workplace drug testing are very similar, and the evidence behind it is similarly shaky. Just saying.
So there you have it.
Legally speaking, if you’re not impaired, your legally-obtained medical substances are no reason for you to lose your job. Also, ‘random’ drug testing is a steaming pile of bullshit that needs to get in the sea. Preferably in a submarine designed by Oceangate.
Special thanks to Ashleigh Fechney (LLM) for helping with the legal stuff <3