Why employers should be cautious of drug testing at work.

According to a Home Office report, 8.4 percent of adults had taken an illicit drug in the last 12 months. So, should employers be actively testing their staff for drugs? What are the rules?

Legal obligations

Under the Health and Safety at Work Act 1974, employers have a duty to ensure the health, safety and welfare of their employees at work. Not surprisingly, it is an offence to permit the supply or use of controlled substances at work and extends to knowingly allowing an employee to continue working whilst under the influence of illegal drugs or alcohol if their behaviour places employees, or others, at risk. For this reason, most drug testing at work is reserved for safety-critical posts.

Should you drug test?

Employers must remember:

  • Testing cannot be done without the employee’s consent. Contracts and policies can specify that withholding consent may lead to disciplinary action.
  • Drug test results are sensitive personal data under the Data Protection Act 1998 (DPA) and GDPR. Explicit consent must be obtained and employers must treat results with all the necessary safeguards.
  • It may be an intrusion into the employee’s right to privacy contrary to Article 8 of the European Convention on Human Rights. The intrusion may be justified if it is in accordance with the law and is necessary in the interests of public safety, among other things.
  • Raising awareness, clear communication and staff consultation should be central – including policies, training staff in recognising drug misuse, promoting awareness and employee assistance programmes.
  • Extensive consideration should be given to which system and testing company is used, how and how long samples are stored securely, and limiting access to the right people.

Occasionally, things can appear to go wrong.

One employee blamed a poppy seed roll for failing a drugs test at work. He was suspended for 11 weeks from his pipe fitting role after a random drug test came back positive for morphine.

After receiving the shock results and to prove his innocence, he privately paid £120 for a hair follicle test, which came back negative. You can read about his story here.

He also got a letter from his GP, which proved he had never been on any prescribed medication, such as morphine or painkillers – which contain opiates.

Following the report of someone else who was dismissed from his position at a power station, the presenter Angela Rippon carried out an experiment – after she ate a loaf of poppy seed bread and a poppy seed bagel over the course of three days, she too tested positive.

Minute traces of opiates in the seeds could trigger such results from 30 minutes to 16 hours after ingestion. It is reported that vitamin B supplements, ibuprofen and tonic water can produce equivalent results, leaving employers potentially assuming the worst. In such circumstances, dismissal for gross misconduct may not be appropriate. Further investigation and even tests may be needed, and it is vital to use reputable substance-testing specialists to ensure a robust chain of evidence.

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