Drug testing in the workplace

Though the issue of drug testing in the workplace can be a difficult one for both employer and employee, every organisation is under an obligation to protect staff from injury or harm in the workplace. The UK Health and Safety Act 1974 makes it a legal requirement for employers to ensure, within reason, the health, safety and welfare of those working for them. If an employer were to knowingly allow a member of staff to continue working while under the influence of a banned substance, that employer could be prosecuted. In a similar fashion, employees are also obliged to take care of themselves and those who could be affected by their actions.

If an employee is harmed by the actions of a colleague who is working while under the influence of drugs (or alcohol for that matter), the employer could find him or herself facing a personal injury claim. Similarly, a member of the public who is harmed by an employee could sue the employer using the general vicarious liability principle.

Reassuring staff

Although the introduction of workplace drug tests may prove controversial, employers should ensure that staff understand it is for their benefit to have a safer working environment and that they have nothing to fear from the rolling out of such a policy. Employers should move to reassure staff that a drugs policy in the workplace would be implemented and administered sensitively and in line with employee rights. At the same time, the policy needs to be robust and employers should ensure the message goes out that substance abuse will not be tolerated in the workplace.

In terms of employer sensitivity, an organisation should treat drug abuse and drug testing as a welfare issue, assuring staff that if someone does test positively, time will be allowed for them to receive treatment and counselling and that the employer will support them through a difficult period. If other employees see someone who tests positively not being treated in the appropriate manner, they may make moves to hide their own substance abuse even deeper, thus endangering the company further. If employees see a colleague being treated in a sensitive manner, on the other hand, they may very well come forward to seek support themselves if they have similar issues. A survey carried out in 2001 by the Chartered Institute of Personnel and Development suggested that the most effective intervention was counselling, with disciplinary action being seen as the least effective course of action.

Legal implications

The importance of employee buy-in into a new workplace drugs policy is in part owing to the fact that the introduction of any new system governing existing staff members entails a change to their terms and conditions of employment. In a strict sense, testing constitutes an invasion of privacy and employees enjoy the right to say no on the basis of what their existing contracts tell them. Therefore, the importance of a new drugs policy in respect of employee welfare and corporate need must be emphasised. Bearing in mind the legal consequences of introducing and administering a policy in respect of testing for drugs, employers should seek professional legal advice before they put any procedures in place.