Drug testing court case review: Vulcan Steel, 2021

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Vulcan Steel Limited v Manufacturing & Construction Workers Union (2021) is an interesting case that was fought over urine drug testing vs oral fluid drug testing.

Vulcan Steel had the following clauses in their drug & alcohol policy.

3.3 Drug testing will utilise hair and/or urine and/or saliva test techniques, as outlined in the DASP.

8.3.1 Prior to undergoing a test, a test consent form will be signed by the employee consenting to the relevant method(s) of testing.

The Employment Relations Authority ruled that, as the policy stood, this gave employees the right to choose what form of testing they wanted.

Vulcan Steel made two mistakes in their policy:

  1. They weren’t specific. Decide what form of testing you will be using, and state this clearly. Don’t include additional forms of testing ‘in case we might need it in the future’ — this just adds more ways for the process to go wrong. If you are going to be using different forms of testing, be specific about what situations they will be used in. E.g:
    Example Company Ltd will use urine drug testing for pre-employment, random, and rehabilitation drug testing, and oral fluid drug testing for post-incident and reasonable cause drug testing.
    All urine drug testing will be conducted in accordance with AS/NZS 4308:2008 (or subsequent revisions).
    All oral fluid drug testing will be conducted in accordance with AS/NZS 4760:2019 (or subsequent revisions).
    All alcohol testing will be conducted with a breathalyser verified to AS 3547:2019 (or subsequent revisions).
  2. Their policy was too prescriptive. Including more detail in a policy leaves more ways for it to go wrong. A drug testing policy should include enough detail for an employee to consent to this, but drug testing procedures should be in an entirely separate document unrelated to the policy.
    A policy should cover what (this is what we’ll be doing), and procedures should cover how (this is the process we go through when we carry out drug testing).

How adulteration works

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Let’s talk about adulteration in drug testing (also known as cheating).

It’s a commonly used concept to refer to three different types:

  • substitution — using someone else’s urine, synthetic urine, or a different substance altogether.
  • dilution — diluting the urine sample so the levels of drugs present drop below the cut-off level. The dilution can be in vivo (drinking excessive amounts of water) or in vitro (adding water to the urine).
  • addition — adding substances to the urine sample to prevent the drugs from being detected.

The way to prevent substitution is through your drug testing procedures: check the person isn’t carrying any containers or bags of liquid, ask the person to pat themselves down and to take off any heavy jackets or clothing items that can hide containers, and make it difficult for a liquid to be transferred if a container is smuggled through.

To catch dilution, the urine sample needs to be analysed to see if it matches the characteristics of a normal urine sample. In addition, the environment should be prepared to make it impossible to dilute a sample: drop a blueing tablet in the toilet cistern to prevent water being scooped into the cup, tape up any taps inside the room, tape windows closed to prevent water being passed in from outside.

To catch addition, the process is similar for dilution. The urine sample needs to be inspected and analysed to see if it matches the characteristics of a normal urine, and your drug testing procedures need to make adulteration difficult to achieve. Get the person to wash their hands before testing to remove any substance on their hands/under their fingernails, and stay alert for any signs adulteration is being use

Urine testing cups have an adulteration panel. They will test for a combination of the following adulterant indicators (a good cup will have most or all):

  1. Creatinine (required by the AS/NZS 4308 standard)
  2. pH
  3. Oxidants (may be named Bleach)
  4. Nitrites
  5. Specific Gravity
  6. Glutaraldehyde
  7. Pyridinium Chlorochromate

Stay tuned to our email newsletter, we will cover the meaning of each adulterant indicator, what substances are used to cheat, and procedures for detecting and preventing substitution and dilution.

Alcohol testing measurements

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Different countries around the world use different measures of alcohol in breath.

In New Zealand, we use micrograms of alcohol per litre of breath: in a given litre of breath, how many micrograms (one millionth of a gram) of alcohol does the breath contain?

The symbol for this is μg/L. The current drink drive limit is 250 μg/L, and the DIC (criminal) limit is 400 μg/L.

Most company policies state cut-offs of 0 μg/L or 100 μg/L, with 0 μg/L being the most common.

New Zealand is fairly unusual, using μg/L. The only other countries around the world that use this are Botswana and the Netherlands!

The alternative that we see most often is grams of alcohol per two hundred and ten litres of breath: in two hundred and ten litres of breath, how many grams of alcohol does the breath contain? This is commonly used in Australia and America.

The abbreviation for this is g/210L. In this measurement, our current drink drive limit is 0.052 g/210L, and the DIC limit is 0.083 g/210L.

The updated standard for breathalysers, AS 3547:2019, specifies that breathalysers should measure in g/210L. This is a real pain for New Zealand – we have built up intuition over years of testing that 20 μg/L is a low result and 500 μg/L is a high result. That intuition suddenly no longer applies when being faced with readings like 0.0042 g/210L and 0.105 g/210L!

It remains to be seen how New Zealand will respond to this standard: whether we adopt it entirely and switch measurement units, or whether we adopt it in part and keep using μg/L.

If our measurement ends up changing, the magic number to convert between measurements and get an approximate result is 4,762. To get from μg/L to g/210L, divide by 4,762:

250 μg/L ÷ 4,762 = 0.052 g/210L.

To get from g/210L to μg/L, multiply by 4,762:

0.08 g/210L × 4,762 = 380 μg/L.

Drug testing devices need to be room temperature

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Drug testing relies on reactions between antibodies (on the test strip) and antigens (in the sample, the substance being tested for).

At a lower temperature, reactions occur slower, or not at all.

If your cups are cold you will get inconsistent results, often: panels failing to run, weak/patchy lines, or colours failing to appear on the temperature strip.

Make sure your cups are warm before testing!

For storage, store your cups in a warm office or cupboard, at the temperature range the manufacturer suggests. This is usually from 2°C – 30°C.

When using a cup, the temperature range is smaller. Follow the manufacturer recommendations, usually this is from 15°C – 30°C.

Cold warehouses and vehicles can present a challenge in winter to keep cups at an ideal temperature, but a bit of planning can eliminate these concerns. Have enough cups stored in the office for a few days of testing (plus a some extras for those last minute requests!).

Cups should be stored in an insulated room overnight, as the minimum — a couple of hours in a warm office is not going to be enough to warm up really cold cups, as they’re fairly well insulated in their foil wraps.

Whoops – I ran a test and suspect the the cup was too cold. What can I do?

If you think you have an abnormal result you can test again.

If you’re using a split cup (like the Medix Pro-Split cup), the portion of the sample being tested is split off from the rest of the sample. You can pour the rest of the sample into a new, warmer cup, and repeat the test.

If you’re using a screw top cup (like the MicroScreen cup), ask the donor to give another sample.

As always, these cups are a screening test only. If in doubt after testing again, send the sample to a laboratory for confirmation.

Alcohol interlock devices are provided by Smart Start Interlocks

Sober Check was the exclusive distributor for Smart Start Inc. (the leading alcohol interlock providers) from 2010 onwards.

We worked extensively with government in getting the law changed to mandate alcohol interlock devices for repeat drink drivers — changing behaviour and keeping the roads safer for all.

This involved setting up an extensive network of auto-electricians around the country to install and service. This network covers from Kaitaia to Invercargill, and everywhere in between.

In 2016, Minister Craig Foss announced that the interlock legislation covering this would be changing.

Installation of alcohol interlocks changed from being discretionary, to being mandatory for repeat drink drivers.
This covers people who have been charged with drink driving twice or more within the previous five years, or twice over the limit on their first time.

In 2017, this was split off into a separate company: Smart Start Interlocks — separating drinking from driving.
Since then, over 10,000 drink drive attempts have been prevented!

You contact Smart Start Interlocks on:

If you’ve been sentenced to an alcohol interlock, we recommend you call the Smart Start Interlocks team on 0800 002 182. They are experienced at discussing the particulars of your situation, and giving you the information you need to get to the next stage of your sentence.

Voluntary alcohol interlocks are also common. These are useful where you are afraid that you, or someone else, is at risk of driving while under the influence.
Installing an alcohol interlock in your vehicle makes this physically impossible.
It is also a great way to retrain behaviour that has been learnt over many years — changing “have a drink, go for a drive” to “have a drink, try to go for a drive, ask someone else for a ride”.

Alternately, if you’re after an alcohol breathalyser for personal use, we’d recommend the Lifeloc FC10 breathalyser or the DriveSafe exec breathalyser.

Picture of an alcohol interlock device

How often should you drug test your employees? — guest post by Jayme Groeneveld, JG Testing

Sober Check regularly features posts written by people in the drug testing industry.
This article is a guest post written by Jayme Groeneveld,

Director of JG Testing Ltd, a Wellington-based drug testing provider.

How often should you drug test your employees?

Every employee has a life span — from the very first day they start work, to the day they either resign or get dismissed. Making sure you keep good workers for a long life span creates a more productive company, as you have less down-time recruiting new employees…which as we all know, costs time and money. 

But how does workplace drug testing come into this?

Individuals who are impaired by the effects of illegal drugs are unable to think clearly and make important decisions, which can lead to accidents in the workplace. These individuals aren’t only putting themselves at risk but are also putting their co-workers at risk (the good workers). Accidents mean down-time, potential dismissals and disruption to the workplace, and a good drug testing policy can minimise the chances of these events occurring. 

One of my customers in the transport industry had an incident last year involving one of their truck drivers who caused an accident and severely damaged the truck. They were drug tested on the same day and it was found that there was methamphetamine in their system. They lost their job, the company had to re-hire and insurance refused to pay out because the driver was under the influence.

For smaller companies this kind of set back can be a huge blow to the company and it could have been easily avoided should they have had a better drug testing routine in place. 

What type of testing should I do?

Pre-employment drug testing is a good start — but this shouldn’t be the last drug test that you do!

Certain drugs like methamphetamine for example can only be found from a urine drug test if they have been used relatively recently. What this means is that if an individual used methamphetamine last week, there’s a chance that it may not show on the urine drug test the following week.

The only way around this is to do random drug testing. This form of completely randomly selecting a percentage of employees each month is both fair to all employees (it won’t seem as though you are targeting certain people) and is a great way to introduce random drug testing into the workplace.

To put it simply; if you keep your workplace drug free by testing your employees before and during employment you will be left with a much healthier, safer and more productive workplace which benefits everyone 😊