Drug and alcohol testing at work

We often advise clients on how they can comply with their duty of care to ensure the health, safety and welfare of their employees while at work. This duty also extends to protecting the health and safety of visitors to an employer’s site, and anyone else who could be affected by an employee’s work.

Employees being under the affects of drugs and alcohol at work can have serious consequences, especially where their role is safety-critical. However, there are considerations employers must make before carrying out drug and alcohol testing on employees.

Can I require my employees to undergo testing?

There is limited scope for drug and alcohol testing, namely where working under the influence could give rise to health and safety implications or serious damage to the employer’s company.  For example, where employees operate heavy machinery or drive in the course of their duties.

In addition, employers must satisfy the data protection laws that relate to the processing of ‘special category data’ (personal data that requires increased protection because of its sensitivity).

Employers must obtain the written consent of their employees prior to drug and alcohol testing. This is commonly achieved through either a:

• Contractual clause in their contract of employment which incorporates their workplace’s health and safety and/or drug and alcohol policy;
• Collective trade union agreement; or
• A separate written agreement entered into before or during their employment.

The Information Commissioners Office also recommends employers carry out a data protection impact assessment prior to undertaking any testing, and has set out the following guidelines for employers:

• Only use drug or alcohol tests where they provide significantly better evidence of impairment than other less intrusive means;
• Use the least intrusive forms of testing that will bring the intended benefits to the business;
• Tell workers what drugs they are being tested for;
• Base any testing on reliable scientific evidence about the effect of particular substances on workers;
• Limit testing to those substances and the extent of exposure that will meet the purpose(s) for which the testing is conducted;
• Ensure random testing is genuinely random. It is unfair and deceptive to let workers believe that testing is random if, in fact, other criteria are being used;
• Do not collect personal information by testing all workers, whether randomly or not, if only workers carrying out a particular activity pose a risk. Workers in different jobs will pose different safety risks, so the random testing of all workers will rarely be justified.

What if my employees refuse?

Employers may be entitled to bring disciplinary action against employees who refuse to submit to drug and alcohol testing where they have previously provided their written consent.

Employers should include provisions in their drug and alcohol testing clause or relevant policy which states that a refusal to submit to testing may be considered as misconduct and could result in disciplinary action under their disciplinary procedure.

What should I do if my employee fails a drug or alcohol test?

An employee failing a drug or alcohol test may justify immediate disciplinary action or dismissal. However, this should not be an automatic response in all cases.

Employers should consider:

• Whether the employee has a medical condition that requires them to take prescribed medication and this has caused them to fail the test;
• Could the positive test result indicate an underlying issue; for example, work-related stress or a disability has caused them to self-medicate;
• Whether suspension on full pay may be appropriate while an investigation is underway.

Risks of improper testing and failing to act

Employers who fail to comply with the laws and regulations on appropriate drug and alcohol testing risk being the subject of various claims, such as:

• Constructive unfair dismissal;
• Breach of the implied term of mutual trust and confidence;
• Breach of UK GDPR.

Additionally, where an employer knowingly permits an employee to work while under the influence of drugs or alcohol they could be in breach of their duty to ensure the health, safety and wellbeing of other employees.

There is also potential criminal liability if an employer knowingly permits the production, supply or use of controlled substances at work. ‘Knowingly’ includes ignoring such activities taking place.

Conclusion

The main points employers should consider as to drug and alcohol testing are:

• Complying with the relevant health and safety laws and UK GDPR;
• Obtaining prior written consent;
• Carrying out a data impact assessment; and

Following their written testing procedure.