Proposals for dealing with drug driving in the same way as drink driving have implications for employers, including safety, policies and insurance, writes Mark Burrup.
If the Crime, Communications and Court Bill being considered by Parliament goes through without a hitch, drug driving could soon become a specific offence punishable by a jail term or fine. Employees who are caught with certain controlled drugs in their system could pose problems for employers – not only in terms of staff being absent from work or unable to fulfil their duties, but by potentially leaving the employer open to prosecution.
So what are the changes being proposed by the Bill? In order to prosecute under current law, police have to prove that driving has been impaired or adversely affected by drugs. To prove impairment, drivers have to go through a series of tests at the roadside. If they fail, they are taken to a police station where a doctor is called and asked whether or not the drugs could have caused the impairment. If the answer is yes, a blood sample is taken for lab analysis.
However, under the proposed law, the police will not have to prove impairment and will be able to test for traces of drugs in saliva at the roadside. The fact that a person has certain controlled drugs present in their body will be enough to prosecute. With no doctor needed the entire process will be quicker and easier.
A review by a panel of scientific experts has started to determine which drugs and their levels in the body are likely to be included under the new laws. Whatever is decided, it is likely that Class A drugs, such as heroin and cocaine, and Class B drugs, including cannabis and speed, will be on the list, as well as some prescription drugs.
Current discussions suggest that the new limits for certain drugs in saliva are likely to be:
- Cannabis 10ng/ml
- Benzodiazepines 10ng/ml
- Cocaine 30ng/ml
- Amphetamine 40ng/ml
- Methamphetamine 40ng/ml
- Methadone 50ng/ml
- Opiate 40ng/ml
What does this law change mean in reality?
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In simple terms, there are likely to be a lot more drug tests in the future than there are now. It follows that more people will test positive and some of these people could be your employees.
A report published in May by the RAC showed that one in 10 people aged between 17 and 24 had taken drugs before getting behind the wheel, while a study by the Transport Research Laboratory in April 2012 showed that drugs were a key factor in nearly a quarter of fatal road accidents.
Research from drug and alcohol testing specialist Draeger Safety UK suggests that there are likely to be as many drug drivers on the roads as drink drivers. With about 100,000 people convicted of drink driving every year and about 1,000 drug drivers, the number of drug drivers convicted is likely to increase dramatically.
The penalties for drug driving range from a 12-month driving ban and fine to a prison sentence. There is also the inevitable increase in car insurance premiums and a criminal record. Employers need to ensure that they are prepared should any of their employees be caught by the new law.
Which companies will be affected?
Companies with employees who use a vehicle for work-related activities will be most affected by the new law. Businesses involved in logistics, haulage and transport are obvious examples, but those that run a company-car fleet or have a pool car for business meetings should also be aware.
Since a vehicle used for company business is considered to be a place of work, employers must ensure the health and safety of employees even when they are driving, as well as ensuring that others are not put at risk by their employees’ work-related driving activities.
Employers need to consider the implications should a member of staff be banned form driving for 12 months. Company car insurance premiums are also likely to rise if staff are successfully prosecuted.
Why worry?
HR and occupational health professionals would be wrong to believe that they need only to maintain company vehicles or provide valid driving licences for staff to comply with road traffic laws and be protected from prosecution.
A raft of legislation already exists to ensure that employers have a duty of care towards employees. Employers need to take very seriously the health and safety of employees and manage risks effectively to keep staff protected wherever possible. The consequences of failing to do this could be costly from a financial, legal and reputational point of view.
The Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 already cover this area. Additional legislation – the Transport and Works Act 1992 – covers the transport industry, making it a criminal offence for safety-critical workers to be under the influence of drink or drugs.
However, the new legislation should shift the focus of employers on to their employees’ use of drugs. If an employee is caught with certain controlled drugs in their system while driving on company business it could leave the employer open to prosecution.
How should you prepare?
Unlike alcohol, which can be smelt on the breath, employees who take drugs are more difficult to spot. The Health and Safety Executive, in partnership with the Home Office, the Department of Health, the Scottish Executive, the Health Education Board for Scotland, the National Assembly for Wales and the Health and Safety Executive Northern Ireland, has produced a guide for employers on how to spot the signs of drug misuse at work and how to deal with it.
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There are subtle signs to look out for that can indicate whether or not an employee has a drug problem. Studies from the US show that employees who use drugs are less productive, take more time off work and are nearly four times as likely to have an accident in the workplace. Worryingly, the studies also show that nearly half will also “sell on” those drugs to other work colleagues. The potential snowball effect is clear.
Employers preparing for the new legislation might want to consider training schemes that help managers and supervisors to identify the signs of drug taking before it is too late.
For those that do not have a drug misuse policy in place, it can be useful to consider introducing one to avoid misunderstandings on the company’s position.
As well as a drug misuse policy, there are some companies where driving or safety-critical jobs form a regular part of the work – for these organisations, drug and alcohol workplace testing schemes can be helpful.
What should employers include in a drug testing policy?
Before introducing a drug and alcohol testing policy, employers should consult their workforce or trade union to maximise staff buy-in at all levels.
Whether all personnel are tested or just safety-critical staff, employees need to understand and support their employers’ rationale. Equally, they should have the medium- to long-term benefits and effects of a policy fully explained to them as individuals.
HR and policymakers need to be careful to communicate the type of testing they plan to carry out, what they are testing for and the consequences of a positive test to ensure that there are no surprises for staff.
Employees with a drug problem have the same rights to confidentiality and support as those with any other physical or psychological condition, so employers could face employment tribunal claims if they do not try to help the employee.
Numerous organisations offer training for employers on providing this support or, alternatively, the affected person’s GP should be able to direct them towards help. For safety-critical work, the employee should be temporarily moved to another area until the issue is resolved.
Should an employer screen for drugs to be sure?
For jobs that require an element of work-related driving there is certainly a case for considering the introduction of a drug screening programme. However, before introducing one, employers should be clear when and how they want to carry out these tests. There are many options available, including:
- testing before employment;
- random tests;
- “probable cause”;
- post-incident; and
- as a condition of access for employees or contractors.
There are also several ways of testing, including through:
- oral fluid;
- urine; and
- hair.
Pros and cons exist for all of these areas. Employers need to ensure that they weigh up everything before going ahead. Prime Minister David Cameron stated in May: “We want to do for drug driving what drink-driving laws have done for driving under the influence of alcohol.”
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HR professionals need to ensure that they have procedures and processes in place to minimise the impact of the introduction of this new law.
Mark Burrup is a drug and alcohol testing specialist at Draeger Safety UK.
