Rights and wrongs of work drug tests
Following on from Mary-Jane Thomas’s article last week about her (not) submitting to a random drugs and alcohol monitoring policy it is timely to remind people of their rights and obligations with respect to such things.
A case last year involving drugs and alcohol was interesting in that it appeared to require that employers had to have reasonable cause for insisting that people undertake drug and alcohol screening before they could take any action as a result of the outcome of the testing.
Not only that, it determined that even if an employee was found to have a nonnegative result for a banned substance, such as cannabis, then the employer could be prevented from taking the disciplinary action provided for under the employment agreement for a positive test result.
This was because if there was no ‘‘reasonable cause’’ for requiring the employee to undertake the test in the first place then the employer was prevented from taking any action with respects to the result of the test.
It is important for both employers and employees to be aware of their rights and obligations in terms of such testing.
It is incumbent on the employer to ensure that if they require employees to undertake a drug or alcohol screening test then they are firstly entitled under the employment agreement or a comprehensive drugs and alcohol policy to require such testing.
A provision in any employment agreement should cover such things as screening after an accident or a near miss; screening as part of a random screening programme; screening where the employee is acting out of character; screening where there is the smell of alcohol on an employee’s breath; or where someone reports that they have seen the employee indulging in the consumption of drugs or alcohol that may have impaired them while they are at work.
There may also be other situations where an employer would like to be able to insist on screening taking place. They should be spelt out in any policy or explicit employment agreement term.
It is also important that the employer does not just leave the matter at the point where the employee is subject to screening. The employer should have something in place that deals with the situation where a positive or nonnegative result occurs.
What does the employer do if there is a positive or non-negative result?
The employer has to consider the circumstances of the result.
Is the result indicative of the fact that the employee was under the influence of drugs or alcohol while at work, or is the result indicative of the fact that the person has simply been in contact with the drugs or alcohol?
What about legal drugs and the influence they have on a person’s ability to work productively and safely while at work? There are some drugs that are perfectly legal and have been provided under prescription, from a doctor, for perfectly legitimate reasons but which influence how safely a person can work.
The employer needs to be aware of these and their implications for safety. For example there are numerous drugs that induce drowsiness and individuals should not drive vehicles or operate machinery after taking them.
Does this have negative implications for the safety of the worker or others in the workplace if they do take them albeit that they are perfectly legal?
The employer needs to consider what is to happen to a person who provides a positive or non-negative result.
Are they to be dismissed the first time they provide such a result? Are they to be supported in trying to come off the drugs or alcohol? What if they have a second or subsequent positive or non-negative result? Is the employer’s reaction going to be as supportive as the first time?
What were the consequences of the person having drugs or alcohol in their system in the first place? Was the consequence a near-miss accident or a fatality? What was the degree of influence they were under or was there simply a low level of the substance in the body?
All of those things must be taken into account when developing a policy around what is to happen when a positive result occurs.
An employer is entitled to adopt a ‘‘zero tolerance’’ approach, but in all cases if they are to take any form of action in response to a positive test result then they must follow the correct process for dealing with allegations of misconduct or serious misconduct. For all the employer knows there may be a perfectly innocent explanation for an initial positive result.
For both employers and employees it is important that they know and understand their rights and obligations. All is not as it may seem on the surface with respect to drugs and alcohol.
Brian Richardson is an employment and HR adviser for Preston Russell