Legal Q & A: Drug testing at work

By David Bickford, head of employment law at Fladgate Fielder

Q To what extent can we carry out random drug testing on our employees?

A Unless an employee voluntarily agrees to undertake a drugs test,
you will need to have reserved a right to test for the presence of illegal
drugs in either the contract or an appropriate policy. Even then, the extent to
which you have the right for a random drug test is limited. Obtaining urine,
for example, is arguably degrading, and you would have to ensure there were
secure rooms or lavatories.

A further problem is the test may also reveal other medical conditions – a
predisposition to disease or the use of prescription drugs, for example. This
raises issues of privacy and data protection as well as those of imposing a
duty of confidentiality on those involved in the process.

Where employees operate dangerous machinery, including transport workers,
the requirement for random drug testing can arguably be supported. Indeed, it
is arguable that an employer in those circumstances might be in breach of the
health and safety legislation if it failed to carry out such monitoring.

It is important to consider the least intrusive method and/or most reliable
method of testing. It may be that an employer can satisfy itself through
assisted performance tests, which measure hand and eye co-ordination and
response times, for example.

Q Does the Human Rights Act 1998 have any effect on our ability to carry
out drugs testing?

A If the company is not an "emanation of the state", then
the HRA cannot be used by the employee to pursue a claim. However, if the
employer is a public authority then it is likely the employee’s right to a
private life will only be infringed to the extent that they are, for example,
required to provide a urine sample. It is permissible for employers to
interfere with an employee’s right to private life in a democratic society to a
degree necessary in the interests of, among other things, public safety. Where
an employee has responsibility for public safety issues during their
employment, the need for drugs testing, even on a random basis, could be argued
to be proportionate.

Q What should we do with the results of any drugs test?

A As with other forms of surveillance, processing of such information
is data and therefore covered by the Data Protection Act 1998. The Act provides
standards to be complied with, which includes a suggestion that, where
possible, any drugs testing should be on a voluntary basis and where any
decisions may affect somebody’s employment, any test carried out should be of
the highest technical quality and subject to rigorous quality control
procedures. As with sensitive personal data, explicit consent will be
necessary.

Q What do we do if an employee refuses to take a test?

A Forcing an employee to undertake a test without consent would be an
assault, even where the taking of such a test is a condition of their
employment. However, this raises the question of the position of the employee
who is dismissed for refusing to agree to such a test. In these circumstances
the employer needs to be able to justify its decision on, safety fears, for
example, or point to factors indicating drug use.

Q What do we do with an employee who tests positive for an illegal drug?

A No doubt your policy will set out the likely outcome. Almost certainly
this will be a disciplinary procedure and this may even state that it could
result in dismissal. However, employers should also consider whether or not the
employee is able to pursue medical or rehabilitative treatment and whether a
different approach is to be taken depending on whether the drugs were consumed
inside or outside of the workplace. Above all else, follow your policy.

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