Drug testing of employees is becoming increasingly popular as employers endeavour to ensure their employees are safe in their workplace.
There is no specific employment related law that deals with drug testing in the workplace. However the statutory requirement to maintain a safe work environment under the Health & Safety in Employment Act 1992 certainly justifies a workplace drug testing programme. However it can prove problematic because it involves balancing employees’ rights to privacy against employers’ obligations to ensure the safety of their employees.
Recent cases have served as timely reminders to employers of the importance of having a well drafted alcohol and drug policy and of adhering to procedural standards when carrying out testing.
Random testing is permitted but may only be carried out where it is expressly provided for in a company’s drug and alcohol policy and is for reasonable cause. Reasonable cause testing is where the employer has good grounds to suspect that an employee’s behaviour is an actual or potential cause or source of harm to others as a result of being affected by drugs and/or alcohol.
An employer is entitled to rely on its occupational health and safety obligations when implementing a comprehensive drug testing policy. However testing must be carried out in accordance with the policy and should not unnecessarily infringe on the rights of employees.
Any workplace drug testing should be done with the informed consent of the employees concerned. While employees cannot be forced to provide a sample or to consent to have a sample tested, it is usual for a policy to state the consequences and disciplinary process following a refusal.
Tips for employers
- Alcohol and drug policies clearly set out the employers position on alcohol and drug use in the workplace, i.e. when testing may be carried out and possible consequences for employees of breaching the policy
- “Safety sensitive areas” are clearly identified in the policy
- Policies are made known in the workplace, and
- Any testing is carried out in accordance with company policy.
If you would like assistance or guidance in drafting, implementing or enforcing your workplace drug and alcohol policy please do not hesitate to contact one of our employment law team.