An increasing awareness of these compliance requirements and legal scrutiny of Collection Agencies and Collectors is leading to a significant change in the way drug and alcohol testing is being conducted. There are new responsibilities placed upon the mining companies that request third party testing through “collection agencies”, and considerable compliance requirements on those that conduct testing “in house” well beyond simply attending a training course.

This article discusses the most common compliance gaps in the drug testing field, including various issues that should be investigated and common areas of concern that you can address. We also explain the accreditation requirements to satisfy the Australian Standards for testing of drugs in Urine or Saliva.

An estimated 90 per cent of Australia’s drug and alcohol testing programs are currently not compliant

So where are the compliance gaps?

To be compliant with the Australian Standards for on-site collection and/or screening – your program now requires:

1. NATA accreditation (including for on-site collection and/or screening – not just your laboratory)
2. Validated Screening Kits as required by the relevant Standard 
3. AQTF compliant Training of Collectors 
4. Quality Assurance;
   a. Quality Assurance specifically to ISO 15189 (not ISO 9001)
   b. Negative and Positive Control Solutions used as specified in each Standard
   c. Participation in an independent Quality Assurance (Proficiency) Program 
5. Technically correct drug and alcohol testing policies (common issues of concern include; incorrect cut-off levels, terminology such as ‘impairment’, ‘under the influence’ or ‘zero tolerance’ and failure to accommodate results arising from medications).

Common Drug Testing Compliance Misconceptions!

• “Training = Compliance” If your staff or your Collection Agency have received AQTF compliant training for drug testing but you have not satisfied all of the four additional requirements above; quite simply your program is not compliant. AQTF compliant training of collectors in only a small piece of the compliance puzzle.
• “Our third party provider is accredited!” – Most likely this is not correct; only 3 laboratories/ collection agencies are NATA accredited to the Australian Standard for on-site urine collection and screening; (Section 2 including Appendix A of AS/ NZS 4308:2008) as well as the Australian Standard for Oral Fluid testing; (Section 2 of AS 4760: 2006). 
• “Our third party provider holds the correct accreditation for the works they perform!” – Most likely, this will be incorrect. If the third party Collection Agency is collecting/ screening samples on-site, it’s likely or at least highly probable that they: 
  • Have no NATA accreditation, or 
  • Have inadequate NATA accreditation: For example NATA accredited for AS/NZS: 4308:2008 to Section 2 (Specimen Collection, Storage, Handling and Despatch) but omitting Appendix A (On-Site Screening Procedure). This means that the provider is not accredited for on-site screening of urine samples and only for collecting, storing and forwarding samples to the laboratory. 
• “But our Company only screens samples in-house, anything that is not negative is sent to an accredited laboratory!” If you are screening your own Staff, and rely upon a third party service (laboratory) for confirmation testing, the collection and/or screening components are now incorporated into the Australian Standards and your organisation still needs to satisfy these requirements if you are to claim to be compliant. Currently no companies performing “in-house” testing are NATA accredited and accordingly, all “in-house” testing is not currently compliant with either the urine or saliva drug testing Australian Standards.

Australian Standards - Potential Compliance Gaps:

“The devil can be in the detail” is a statement that is very true with drug testing. You will find that much of the detail/ compliance requirements are contained in the “definitions” of terms. This field can be quite technical and complicated; however we’ve provided the following summary to assist organisations interested in the compliance of their program:

For urine testing, under the Australian Standard (AS/NZS 4308:2008):

1.3.1 (page 8) “Accreditation” is described as the “assessment by a recognised body of the technical competence of a laboratory….. or a collection agency where both collection procedures and on-site screening are performed”. The only independent assessment/ accreditation body for drug testing in Australia is NATA. Accordingly without NATA accreditation (including collection and screening) no programs can claim compliance with the Australian Standard.

This definition might firstly appear as though the accreditation requirement solely applies to third party providers (laboratories or collection agencies), however the Standard also directly relates to any organisation that utilises its own employees to perform collection/ testing to be the equivalent to and requiring the same accreditation as a Collection Agency (ref 1.3.12 (Note 2)). This Concept might best be described by way of a hypothetical example;

If “XYZ Mining Pty Ltd” implements a drug testing program for its employees and contractors; XYZ Mining Pty Ltd would be the “Requesting Authority”. XYZ Mining Pty Ltd can appoint a NATA accredited “Collection Agency” (for example “ABC Certified Drug Testing Pty Ltd” to conduct the testing on its behalf, performed by its AQTF trained and accredited “Collector(s)”. Under AS/NZS 4308:2008, XYZ Mining Pty Ltd is also required to assure the compliance of ABC Certified Testing Pty Ltd.

Alternately, if XYZ Pty Ltd appoints various employees as “Collectors”, then XYZ Pty Ltd is acting in the capacity of a Collection Agency and accordingly, it will need to meet the same compliance provisions as required for Collection Agencies.

The Mining Company is responsible for assuring Compliance even when engaging a third party Collection Agency.

In either of the above cases, AS/NZS 4308:2008 passes the responsibility for assuring the compliance of collection and testing to the Requesting Authority (which would be the Mining Company requesting the testing). [refer “Requesting Authority” (1.3.30, AS/NZS 4308:2008, page 10)].

But how can you check? You can ask your provider for a copy of their NATA accreditation certificate (including scope) or simply use the search tools on the NATA website (www.nata.asn.au - use the “view detailed scope” link at the bottom of each provider’s page). If your provider is not listed at all on the NATA site, they are not accredited or if they are listed and their scope does not match the function that they perform, then obviously this has major ramifications for the compliance of your program.

For oral fluid testing in the Australian Standard AS 4760:2006

The oral fluid Standard AS 4760:2006 was the precursor for increased compliance requirements in the drug testing industry in Australia (containing similar descriptions of “Accreditation”, “Collector”, “Collection Agency” and “Requesting Authority” to the Urine Standard as revised in 2008). It is slightly less prescriptive however the requirement for NATA accreditation is equally clearly required, at the very least to Section 2 “Collection, Storage, Handling and Dispatch” in addition to the myriad of further compliance aspects as detailed on the NATA website www.nata.asn.au.

A final point relating to oral fluid testing compliance concerns NATA accreditation to Section 3 (on-site screening) which requires (amongst other things) the independent validation of screening kits in the same way as for urine testing kits as detailed in Appendix B of AS/ NZS 4308:2008 (page 31). Given that the market is awaiting the first screening device to fully satisfy this requirement, no organisation in Australia can as yet receive (or proclaim to have) NATA accreditation to the on-site screening component; Section 3 (of AS 4760:2006). Accordingly, it would be most unwise for any organisation’s program/ policy incorporating oral fluid testing to proclaim full compliance with AS 4760:2006 where it uses screening kits on-site as this is clearly not currently possible.

Accordingly, full compliance with the oral fluid Standard is currently only achievable through sending every sample to an accredited laboratory, provided that the Collector is NATA accredited to Section 2 of AS 4760:2006 (and if the laboratory is also NATA accredited to Section 5 or holds the forensic equivalent). However this process unfortunately bypasses the significant benefit of on-site screening (the ability to act in a timely manner in response to a potential risk). This is particularly the case in remote mining locations where it might take up to 3-4 days simply for the sample to reach the laboratory, not to mention the considerable sample storage and economic implications.

Technical Issues in Drug and Alcohol Policies

A large number of Company Policies have been drafted by personnel with extensive knowledge in their own specific field but without the required technical and operational expertise in drug and alcohol testing, an understanding of the relevant Australian Standards or various issues that have previously been addressed in an Industrial Relations Commission in Australia.

Common issues include:

• Incorrect Cut-Off Levels: some policies state the incorrect cut-off levels:

• urine cut-off levels in an oral fluid policy [or visa versa] or 
• superseded/ redundant levels from old versions of a Standard or 
• screening cut-off levels instead of the confirmatory cut-off levels. 50ng/mL [or ug/L] is NOT the confirmatory cut-off level for Cannabis as incorrectly stated in many policies. 

• Incorrect Terminology – terms such as “zero tolerance” can be incorrectly interpreted* - is this a zero limit? (not possible for drugs given that both Australian Standards provide for specific cut-off levels), or does it refer to dismissal following a single instance? (not favoured by Australian Industrial Commissions). Other terms such as “impairment” are subjective and have been specifically excluded in both the Australian Standards for urine and oral fluid testing [Urine; AS/NZS 4308:2008 1.1(e) Note 2 and Oral Fluid: AS 4760:2006 1.4 General (p10)]. Referring to a screening result as “positive” also conflicts with provisions in either the Australian Standard for urine or saliva.
• Medications – A policy stating that anyone exceeding the confirmatory cut-off levels of the relevant Standard does not allow for samples that, although “positive” might actually be commensurate with medication(s) that the person might have declared at the time of collection. This aspect should be provided for in the interests of the fair treatment of the Donor. Otherwise the Company may be forced to apply their policy inconsistently, (for example the treatment of a codeine positive result would be treated differently to a methylamphetamine result). Obviously this is reasonable; however if you are going to treat the results differently; you should state this precisely in your policy.

Darron Brien is the Managing Director of Fit 4 Duty Pty Ltd, a national NATA accredited on-site drug testing agency and additionally; the Drug Testing Institute Pty Ltd a Registered Training Organisation specialising in AQTF compliant drug testing training. Darron has personally conducted and supervised in excess of 70,000 workplace drug tests and Fit 4 Duty services in excess of 2000 locations, each of which employ up to 1500 workers. Darron’s team can be contacted on 1300 660 90

This information is not legal advice. It is provided to you as free community education and information. The author has made every effort to ensure the accuracy and currency of information however it accepts neither responsibility for the accuracy or currency of information contained, nor for actions undertaken on the basis of this information. You should obtain your own legal advice in relation to your own particular circumstance prior to taking any action. *Perkins v Golden Plains Fodder Australia/ Macpri Pty Ltd [2004] SAIRComm5