Drugs in the workplace: do you need a testing regime?

May 24, 2015

In November 2014, the BBC reported that some drug screening companies had seen rises of between 40% and 470% in the number of annual tests carried out over four years. Two of the companies saw rises of 100% and 470% in the number of drugs tests they conduct annually. The use of drugs and alcohol in the workplace, and its potential impact on health and safety, is an important issue and this news is a reminder of that.

The HSE is concerned about this issue and its Research Report RR193 The Scale and Impact of Illegal Drug Use by Workers seeks to establish the prevalence of illegal drug use in the workplace, to investigate the effects of illegal drugs on work performance and to determine whether there is an association between illegal drug use and workplace accidents, injuries and human error.

Many companies have introduced drug screening programmes for their employees. The Stobart Group, which includes the well-known Eddie Stobart haulage business, introduced a drugs-testing policy three years ago.

This article examines the purpose of drug screening, the legal issues and their implications. It looks at the way a workplace drugs policy can be implemented and what are the practical issues involved.

Legal issues and implications

It is well known that the role of human behaviour is critical to the causation of accidents and that people, the decisions they make and the actions they take, cause the majority of accidents. Many drugs (such as cannabis, amphetamines, cocaine and opiates) can impair judgment and introduce human error, which in turn can lead to accidents.

The purpose of any drug or alcohol testing regime must be to prevent accidents caused either directly or indirectly by an employee’s drug use, even if such drug use occurred in the employee’s own time, which is not usually the concern of the employer. It is in employers’ interest’ to manage drug use by their staff because it can lead to absenteeism, lateness and performance issues.

The fundamental legal requirements on health and safety implicitly require employers to consider the issue of potential drug or alcohol use by their employees and the impact this may have on their own health and safety or that of others. The general requirements of the Health and Safety at Work, etc Act 1974 at ss. 2 and 3 are applicable, as are the requirements of the Management of Health and Safety at Work Regulations 1999, including the duty to perform risk assessments.

Common law, too, imposes on employers a “duty of care” to their employees and others and this will extend to the potential use of drugs.

The Transport and Works Act 1992 makes it a criminal offence for certain workers to be unfit through drugs or drink while working on railways, tramways and other guided transport systems. The operators of the transport system would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence being committed.

The Road Traffic Act 1988 states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence. An offence is also committed if a person unfit through drink or drugs is in charge of a motor vehicle in the same circumstances.

It is also an offence under the Misuse of Drugs Act 1971 for occupiers knowingly to permit the possession of certain controlled drugs on their premises and can be grounds for dismissal by an employer.

Drug classifications

The Misuse of Drugs Act 1971 classifies drugs as follows.

• CLASS A: includes ecstasy, cocaine, heroin, LSD, mescaline, methadone, morphine, opium and injectable forms of Class B drugs.
• CLASS B: includes oral preparations of amphetamines, barbiturates, cannabis, cannabis resin, codeine and methaqualone (Mandrax).
• CLASS C: includes most benzodiazepines (eg Temazepam, Valium), other less harmful drugs of the amphetamine group, and anabolic steroids.

Screening employees for drugs and alcohol is a sensitive issue and any policy must be introduced with the involvement of, and consultation with, employees or their representatives.

Discussions on a workplace drug policy are likely to include the following.

• The aims and expected outcomes of the policy.
• The standards of behaviour required to comply with the policy.
• The importance of senior management commitment to the policy and to creating workplace awareness about the harmful effects of alcohol and drugs.
• The factors in the workplace that may contribute to harmful drug and alcohol use.
• The role of restrictions on the availability of alcohol and other drugs in the workplace, e.g. at company functions.
• Intervention strategies: the earlier a problem is addressed, the better the chance of successful management.
• Reporting procedures: a confidential process for reporting alcohol and other drug misuse will encourage both the affected employee and/or others to report hazards.
• Incident and accident reporting: consider adding an option to note if alcohol or drugs have been a factor in any in-house incident reporting systems.
• Procedures for drug and alcohol screening.
• The types of counselling and support services that are most appropriate for the workplace in question.
• The education, information and training needs of managers, supervisors and employees.
• The confidentiality, privacy and anti-discrimination requirements.
• The types of disciplinary action relating to drug-related incidents that are suitable for the workplace in question.

Screening and training

Screening employees usually involves taking blood or urine samples from the employee and is in itself a difficult and sensitive issue. Employees cannot be forced to give blood or urine samples and taking them without their consent could be regarded as assault.

However, all policies on drugs and alcohol should contain a requirement for employees to give blood, urine or other types of sample within the constraints of the policy. The policy should be incorporated into contracts of employment; in which case, should an employee refuse to give a sample then they may be in breach of their contract of employment and face disciplinary action. Taking samples from subcontractors and others is equally challenging; again, it is important that the drugs and alcohol policy is built into contracts of service. It is imperative to train all staff in respect of the drugs and alcohol policy. Approaching a person who is under the influence of alcohol or other drugs requires skill and sensitivity to achieve the best outcome for all at the workplace. When establishing a policy, consideration should be given to designating and training people to approach workers who are displaying signs of being under the influence of alcohol or other drugs. Suitable people may include managers, supervisors, health and safety representatives or other persons who have appropriate knowledge, experience and/or qualifications (e.g. counselling). It is important that designated persons are aware of the most effective style of approach.

Conclusions

Although, in the majority of cases, drug use will take place in an employee’s own time, it is still the concern of the employer because the effect of drugs may have a detrimental effect on health and safety in the workplace. Employers must ensure they have an effective drugs policy in place and they must consult with staff if the policy is to be accepted by all.