What do you need to know about workplace drug testing?
Employers often undertake workplace drug testing for health and safety reasons, particularly in safety-critical jobs like road-side workers or crane operators and the practice has increased dramatically in the UK over recent years.
If an employer intends to initiate workplace drug testing, they should review the contacts of employment and the company policy on testing. This should outline how and when they can conduct tests — and what happens if an employee fails a test.
If there is no mention on drug testing in contracts or policies then the employer should not proceed with any drug testing until the policy is in place and staff are aware of it.
There is no legal requirement for an employer to provide advance notice of testing, and random testing may be implemented if this is covered by a company drug testing policy.
If an employer has reasonable grounds to test employees (e.g., because of the nature of the work) and employs random testing, selection must be genuinely random – this can be handled by our team to avoid allegations of persecution or unfair discrimination.
Employers must obtain informed consent before they perform a drug test. This means they must explain the purpose of the test and have employee agreement (preferably in writing) before taking a sample.
The results of company drug tests should remain confidential, even if an employee fails a test.
Refusing to take a drug test
If employees refuse to take a drug test they are likely, in most cases to face disciplinary action and, possibly, dismissal.
In transportation industries or safety critical scenarios, employers may consider an employee asking for a postponement of a drug test an unreasonable request, this should be covered in the company policy and agreed with the company legal advisors.
Failed drug test
The company policy should include the action to be taken when on-site testing reveals a non-negative result. An instant test is not evidential proof of substance abuse – false positives can occur – the sample should be sent to an approved laboratory for evidential testing, before any action is taken (other than, for example, removal of the operative to a non-safety critical role).
Disability Discrimination Act
Drug addiction does not qualify as a disability for the purposes of the Disability Discrimination Act (DDA) unless caused by the administration of medically prescribed drugs or other medical treatment.
Factors to take into account in assessing the reasonableness of dismissal following a drug test:
- What effect did the employee’s drug use have on workplace safety?
- Was employee taking drugs or affected by drugs whilst on duty?
- Has the employer’s confidence in the employee been irredeemably undermined?
- What effect does employee’s drug use have on the employer’s business and reputation?
- What drugs did the employee use?
Workers Health Ltd can discuss your requirements and assist with the implementation of a drug testing programme at your premises.