Drug and Alcohol Testing

Although the realisation that there is substance abuse going on in an organisation is sobering and quite possibly a cause for alarm, it’s no justification for a knee-jerk reaction on the part of the employer. There’s a significant risk in implementing alcohol and drug testing in a hasty, ill-thought way. Getting legal advice is always recommended to ensure that the implementation doesn’t cause more problems than it solves.

The Testing policy

This is crucial if testing is to be carried out in a controlled and objective way. The employer needs to ensure that their testing policy/procedure is documented in either:

• the employee handbook,

• the employment contract, or

• health & safety documents.

The policy needs to be clear on the circumstances in which drug/alcohol testing will take place and whether it will be

• on a random basis - limited to those employees with safety-critical activities as part of their role (see below),

• or as a result of a (reasonable) suspicion that a particular employee is under the influence and this could lead to a health and safety risk.

Justification for random drug/alcohol testing

There are several high-risk environments where an employer’s insistence on random drug/alcohol testing can be justified. Those tend to be ones where the health and safety of both employees and members of the public would be at risk if an employee was found to be under the influence of either drugs or alcohol.

Examples include:

• transport and haulage, including HGV drivers;

• warehouses, where vehicles such as fork lift truck, counter and reach trucks are used daily;

• manufacturing environments with high-tech machinery;

• workers in the construction industry that operate heavy machinery;

• employees that drive for the business.

The Drug Driving Regulations 2014 set out specific offences of driving with specified controlled or prescription drugs in the body and someone who drives for a living could find themselves disqualified if they fall foul of the law.

Whilst an employer can dismiss, and it would be deemed a fair reason for dismissal, they must still follow a proper and fair dismissal process and it must be the last resort. This means that the employer must at least look at whether the individual can do any other work (for example non-driving work) before dismissing the employee because they are now disqualified.

Even in organisations that operate in safety-critical sectors, such as manufacturing or construction, not every employee will be involved in those activities – some will be working in administration and management and they won’t require the same degree of testing. A random testing policy applying to the whole workforce can’t really be justified.

Consent for testing

In order to carry out testing, whether it be random or specifically targeted, the employee’s consent must be obtained. However, the employer may well draw an inference from unreasonable refusal of consent which could result in disciplinary action, particularly if there is a section in the employment policy that covers this.

It is also worth noting that if someone refuses, there may be more to it and immediately jumping to disciplinary action may not be the most productive move. In particular, the individual could actually have a serious drug and alcohol problem/dependency. According to Alcohol Change UK, more than half a million people are dependent drinkers, but less than 20% are receiving treatment.

GDPR

Since May 2018, employers wishing to bring in drug/alcohol testing for employees need to bear in mind the implications of the General Data Protection Regulation (GDPR).

Under the Regulation, alcohol and drug test results are regarded as “health data” and so have been deemed a special category under the GDPR.

In order to make sure the employer is compliant with the requirements of the GDPR, such testing should be carried out only where it is absolutely necessary and can be justified.

The GDPR guidelines state that collection of this kind of data will be lawful where it is:“…necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject, which require protection of personal data….”

That means that in order for them to carry out drug/alcohol testing, the interests of the employer in carrying out that testing must outweigh the employee’s privacy rights.

The Data Protection Act 2018

Under Section 42 of the Act, which brings the GDPR into UK law, employers need to have drawn up and implemented a policy document that outlines how they will comply with GDPR principles regarding the special category of personal data. That document also has to contain details of retention and erasure of those data.

If the employer intends to rely on the ‘legitimate business interests’ justification for testing, they need to carry out a ‘privacy impact assessment’ to confirm this. The justification must then be mentioned in the privacy notice.

The privacy notice also needs to inform employees that they have the right to object to the processing of their personal data.

Specialised testing companies

To ensure professional, reliable and confidential testing, a qualified professional should be given the job of conducting them.

When the employer is deciding on who to use, they should carry out due diligence to make sure that the testing body or company can provide evidence of their qualifications, competence and that they have met their obligations and responsibilities under GDPR.

When processing the information, it’s important to remember that it should be retained only by those who need to know it. In the data retention policy, the time that the data will be held should be clearly stated.

In the news

This story indicates the care that needs to be taken when conducting drug tests.

rradarstation

rradarstation is a resource available through the AXA MLP policy where policyholders can access rradar’s legal advisory team over the phone or by email and web portal that provides over 1,000 articles, step by step guidance sheets, forms, sample letters and templates to download relating to running a commercial business including Health and Safety or HR topics such as substance testing.