Four steps to legally defendable drug testing in the workplace

A drug testing procedure can help employers to maintain a safe workplace. John Wilson of Concateno, a drug and alcohol testing company, outlines the areas to consider when implementing such a policy.

Drug testing is often a sensitive issue in the workplace that can lead to challenging situations for both employers and employees. Around 5% of the UK’s working population actively use drugs, according to the Government’s latest British crime survey, but how can organisations ensure that their drug and alcohol testing is following best practice and securing a safer working environment for their employees?

The importance of drug testing has been increasingly recognised across all sectors in the UK. In industries such as rail and maritime, drug and alcohol testing is mandatory and is necessary to fulfil regulatory requirements. In industries that are non-regulated, it is important for companies to understand the risks that they may be facing by not implementing an active drug and alcohol policy.

In many cases, the risk of not testing is far greater than the cost implications of doing so. For example, a logistics company where employees drive as part of their job must be confident that all of their drivers are fully alert and putting safety first for the sake of themselves and the public.

Employers will decide to test their employees for a number of reasons, whether because of industry regulation, laws, as a requirement for employment, best practice in the workplace or following a number of drug- or alcohol-related incidents in the workplace. As part of the Health and Safety at work etc Act 1974, employers have a duty of care to provide a safe working environment, which includes ensuring that they do not knowingly allow an employee to work when impaired by alcohol or after misusing illegal drugs – and ignorance of the issue is not an excuse.

However, it is vitally important that any drug and alcohol testing is conducted to the highest industry standards – as the experts always say, behind every test is a person, and their livelihood could be at risk following a positive result.

An incorrect result can also have serious repercussions for a company both internally and externally. As such, the following four steps to successful legally defendable drug testing in the workplace are recommended.

1. Create a drugs and alcohol policy

The first step is setting a clear drug and alcohol policy. This is the foundation stone to ensuring correct drug and alcohol testing procedures. While it is usually the responsibility of the HR or occupational health department to implement the policy, it also needs to be supported and driven by the senior management team to ensure the buy-in of the entire organisation.

The policy needs to be supportive and not punitive, ultimately creating a safer working environment for the individual, team and public.

An effective drug and alcohol policy should be robust and relevant for the improvement of health and safety in the workplace and companies need to seek legal council to check the policy prior to making it operational.

2. Educate staff

Once a policy is in place, the next step is to educate both management and employees about the policy and inform them of the effects of drugs and how usage manifests itself. Managers will need training on the effects of drugs, what the different drugs look like, what they are called and the legal responsibilities.

Scenario-driven situations help to look at how “possible real-time” incidents would be dealt with by the company’s policy. This will enable managers to deal with issues effectively – and in line with the policy – when they arise.

3. Promote policy awareness

The HR or occupational health department needs to communicate the policy to its workforce, clearly stating the start date, the type of tests that will be used in the process, the circumstances under which testing will take place and the consequences of a positive result.

4. Use employee assistance programmes 

Drug and alcohol abuse is often the result of other factors in an employee’s personal or working life. An effective employee assistance programme (EAP) – a confidential service that combines online advice with 24-hour phone assistance – can offer help on a range of issues such as financial concerns, bereavement and family problems.

Employers can use the programme to help develop a happier, healthier and more engaged workforce. Accessing the EAP early can help employees with potential issues, before they have an impact on performance and a long-term effect.

Concateno, a drug and alcohol testing company, recently worked with an organisation that had five positive results and chose to offer the employees support through an EAP. All but one, who chose not to join the programme, returned to work to continue as a contributing employee.

Testing procedures

When rolling out a drug and alcohol testing programme, it is important to ensure that the testing itself is conducted in the best way possible. First, it is strongly recommended to use a testing company that has UKAS accreditation for its laboratories and adheres to strict testing regulations. This will give piece of mind and provide legally defensible evidence to support workplace testing programmes.

There are several important elements to drug and alcohol testing procedures that testing companies should provide.

Collection process

Urine is the most commonly used sample for drug testing, but oral fluid and hair tests are also available. A breath sample is recommended for alcohol testing and any breath alcohol test used should be a fully evidential and Home-Office-approved unit.

There are two ways of collecting a sample: The preferred option involves an accredited collection officer from an independent testing company attending a site to collect samples, following very strict chain of custody procedures. Once collected, the sample will be sent to the laboratory of the testing company for analysis.

The other alternative is “self-collect”, where the employer collects samples from employees themselves. The person assigned to collect samples must be trained by an accredited supplier, so that they can adhere to chain of custody procedures throughout and ensure that it is legally defensible.

Chain of custody

This refers to the process that ensures that the results reported by the laboratory relate, beyond all reasonable doubt, to a specific sample provided by a particular individual. This includes: a chain of custody form, with barcodes that link the specimen to the paperwork; secure packaging to protect it during transit to the laboratory; tamper-evident seals on the specimen containers; and laboratory checks on arrival to confirm that chain of custody is intact.

Testing process

Samples are sent to the laboratory for initial and in-depth testing, performed by specialist laboratory technicians.

At the laboratory, samples undergo screening and/or confirmation testing under strictly controlled conditions. Once again, the full chain of custody procedure ensures sample integrity for legally defensible testing.

Is testing changing workplaces?

Drug testing is proven to have a positive effect on the working environment and nearly all employees accept and welcome an active policy that is clearly communicated and properly executed by a professional accredited organisation.

It increases productivity and safety in the workplace while reducing the number of accidents and absenteeism.

Having worked with various companies in the utilities industry, Concateno has seen a dramatic fall in positive drug test results over a seven-year period from 15% to the current industry rate of around 4.3%.

Using drug testing as a deterrent can be seen working in other sectors, such as rail, maritime and construction.

All have seen reductions in positive drug tests and all have followed the same best practice testing programmes with clear and effective management.

Successful testing

It is crucial that employers make sure that the correct procedures and practices are in place to ensure legally defensible drug testing. If you get the foundations right with a robust drug and alcohol policy and include comprehensive education, communication and a duty-of-care service, complete with test procedures following industry best practice, using a fully accredited, professional and independent service provider, then you will be assured of successful fool-proof drug testing in your workplace.

John Wilson is manager of the employee services division at Concateno, a drug and alcohol testing company. The company offers advisory services and testing capabilities – spanning laboratory, point-of-care tests and all sample types for any biological specimen, including urine, oral fluids, hair and sweat.

XpertHR provides a model policy to help set out the company’s rules on alcohol and drugs testing.

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