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Drug Testing And The Legality Of Drug Testing Policies in the Workplace

The Legality Of Drug Testing in the Workplace

It’s quite commonplace today for employers to implement drug testing policies and related procedures in the workplace. In order to ensure a drug-free work environment, employees in certain industries are required to submit to a pre-employment drug test, then agree to participate in random drug screening during their employment with that company. In most cases, however, in order to subject an employee to drug testing, the employer should have some suspicion that drug-taking has actually taken place.

In industries like the energy and transport industries where a business’s operation depends on safety sensitive procedures, an employee’s Contract of Employment will often contain a clause stating that the employer has the right to perform alcohol and drug testing procedures on an employee.

In other industries, alcohol and drug testing is required by law. However, case law has shown that, whether testing is elective or mandatory, this process can be a tricky one. In fact, employees have been exonerated by employment tribunals who determined that these employees had been unfairly dismissed even though they tested positive to a drug test.

Is It Legal to Carry out Drug Testing in the Workplace?

If employers want to subject their employees to drug testing, they must have consent. This will typically be when an employer has a full contractual safety and health policy included in their staff or contract handbook. The drug test must be random and limited to employees the employer believes should be tested. Unless justified by the specific nature of the employee’s job, employers must not single out specific employees for testing. While an employer may have grounds for testing, no one can force an employee to take a drug test; however, their refusal to subject themselves to a drug test could mean facing disciplinary action.

Employers do have the right to ensure the safety of their operations, while employees might argue that their private life should have no bearing on their employment. So how can an employer lawfully enforce a drug test on an employee suspected of drug-taking?

Drug testing is a lawful process in a work environment as long as it is an agreed-upon condition of employment and that the employer has explicitly informed the employee of their drug testing policy; backed up by clear warnings of the consequences should drug testing reveal a positive result. This information should be in the form of a formal Drug Testing Policy, clearly communicated to all personnel, explaining not only the reasons for drug monitoring, but also the potential consequences. The legal requirements are therefore consent from the employee, a clear drug policy, justification for implementing the policy, and clearly defining the consequences of failing a drug test.

Should Drug Testing in the Workplace Be Planned or Random?

Planned drug testing would clearly give employees time to arrange their activities around specific dates so would therefore not be as effective as random testing; however, if drug testing is to be carried out randomly, this must be clearly set out in the business’s drug policy. The random process is usually computer-generated, whereby one or more individuals are selected from all employees under the workplace drug testing program. Because random testing, also known as ‘spot testing’, is done on an unannounced basis, it can be a very strong deterrent to drug users. Regardless of the frequency, in order to implement any type of drug testing in the workplace, a very robust practical procedure must be put in place with trained and qualified members of management implementing the testing process.

What Happens If an Employee Refuses to Be Drug Tested?

Naturally, drug testing in the workplace is an intrusive process and can create conflict between the employer’s right of ensuring that the employee concerned is capable of safely fulfilling the job they’re being paid to do, and the employees right to privacy. Drug use in the workplace can cause health problems and increase the risk of accidents, and no business would welcome the use of drugs inside the workplace. So, what happens if an employee refuses to be drug tested?

Again, this all comes down to businesses having a formal drug testing policy. Should an employee refuse to be drug tested, the consequences of such a refusal should be clearly defined in the policy. While an employer might view the employee’s refusal to be drug tested as grounds for dismissal, the employer should take into consideration the employee’s reason for refusing the test and take time for careful consideration prior to taking action. If a drug testing policy is in place and an employee refuses to be tested for drugs, they would then be in breach of their employment contract and subject to some form of disciplinary action, which may not necessarily be dismissal. When determining any sanctions against an employee the usual principles of fairness still apply.

Drug Testing Tribunal Decisions

  • In this case, an employee was dismissed for refusing to take a drugs test. Although this was a unique situation whereby the employee had been confused with another person of the same name and the employee in question had a clean disciplinary record, he was still fired from the business because he refused drug testing. The business stated that, as a manager in the company, the employee should follow company policy and set a positive example to less-senior staff members. In this instance, the tribunal decided this was a fair dismissal.
  • A drama teacher was sacked after he was convicted of the cultivation and possession of cannabis. There was no evidence to show that either the conviction or use of drugs had affected, or would affect, either his work performance or the reputation of his employer. It was found by an employment tribunal that this was an unfair dismissal, a decision that was subsequently upheld by the Employment Appeals Tribunal.
  • The dismissal of an air traffic controller due to his off-duty cannabis use, even though there was nothing to show his work has been in any way affected, was deemed a fair dismissal. His dismissal was justified by the employer by referring to the importance of maintaining public confidence in the service.
  • Defective Policy Wording The drug testing policy of a logistics company stated that a dismissible offence was “intoxication at work,” and so the employee was dismissed. While the employee tested positive for cannabis, her employer was not able to prove that she was under the influence of cannabis at her workplace. While the employee had admitted to smoking cannabis the previous week, in this case the employee’s dismissal was deemed to be unfair.
  • Additional Medical Evidence Considered Medical evidence was used successfully by a road construction company to corroborate a positive cannabis drug test in order to defend an unfair dismissal claim. The employee claimed the cannabis had been passively inhaled.

In Conclusion

While employers must be proactive in dealing with drug-related activities in the workplace, they must also follow their own drug policies. In addition, even if an employee has failed a drug test, the employer should listen to reasonable explanations as offered by the employee. Employers must also understand that being under the influence of drugs and failing a drugs test are two entirely separate matters. Should an employee fail to pass a drug test in the workplace, a fair and reasonable investigation conforming to existing policies must be undertaken prior to disciplinary proceedings being concluded.

Employers should –

  • Implement a drug testing policy that is carefully thought out; one that does not restrict the circumstances in which action can be taken.
  • Properly train managers on a) the aims of the company’s drug policy; b) how to recognise the effects of drug taking; and c) how to implement a drug test.
  • Ensure the business has a robust drug testing procedure, ensuring transparency, and using approved methods.
  • Allow a drug tested employee to challenge the results of the test. Note that additional medical evidence may be required.

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