Now that was an easy one to answer when I worked for British Rail (as it was then) as everyone in a ‘safety critical role’ could be, and would be, randomly tested for the presence of either. You could be called at any time, at short notice to produce a urine sample and yes even I had the call as I held various safety certificates to allow me to go ‘track side’ to meet with staff.
However for the rest of the companies I have worked with, and for, that answer is not so easy.
So can you? – If you have a policy in place that states you will test, and that is made known to your staff then yes you can test with their knowledge. Make sure you get their signed consent to it beforehand and that you are testing with their full knowledge as to do otherwise could bring you criminal assault charges! You can do pre-employment tests, post incident, or random tests so long as you clearly state when you will do them and why.
Who can you test? – But even with a policy you need to limit the testing to those who actually need to be tested i.e. the aforementioned safety critical roles, or those driving, or operating machinery. If you wish to test a single employee as you believe them to be ‘under the influence’ remember you need to have good reason to do so, for example ‘will they harm themselves or others they are working with if you did not stop and check they are clear’?
Who can do the testing? – Even with their knowledge you need to ensure whoever is undertaking the test has had the appropriate training. Now that may someone who has had a full briefing as to how to work the equipment and all the procedures that go with it, or they could be an external provider of such services such as a medical practitioner. There are no hard and fast rules.
What do you do with the results? – Firstly remember the results themselves come under the definition of personal sensitive data and must be treated as such under the Data Protection Act, only allowing those who need to know see sight of them. They must also be stored appropriately and the employee told who will have access.
How to interpret the results? – Alcohol has a more definitive result – you either have it present in your system or you don’t and the guidelines as to what counts as ‘under the influence’ are clear. With drugs it’s not as easy as drug testing will not tell you whether a person is either under the influence of a drug. It will simply tell you whether the metabolites of a drug are present. Yes, the presence of drugs can be detected in urine, for most drugs, for up to three or four days after use, and in the case of some drugs they can be detected for up to 30 days, especially after heavy use but the results will not tell you what the level of impairment is so should be treated with caution.
Interpreting the results – Just because your employee tests positive please don’t think you can just ‘sack them’, you need to consider what is the ‘appropriate action’ to take. If a positive result is a criminal offence, such as for driving you may be justified in considering dismissal but don’t just assume so, it depends on all the circumstances of the case. Remember in all cases to follow the proper and full disciplinary processes – investigation, hearing, right of accompaniment, appeal etc.
What if the employee refuses? – Employees can’t be made to take a test but if they refuse when the employer has good grounds for testing, they may face disciplinary action. You need to consider why they are refusing and again follow a full investigation process to try and determine the facts.
Finally what if the employee states they have an addiction? – In ‘corporate world’ I had a chap come and declare he was an alcoholic during a disciplinary investigation into some shoddy work. This kicked in a very different process; one of advice and guidance, and ultimately support to try and help him with his addiction. Reasonable adjustments were made and he made real efforts to stop drinking and achieved it. Had he not though at some stage we would have had to take a firmer line and address the issue another harder way. Before taking action in such cases it’s best to get medical advice and remember that although being an alcoholic may not be classed as having a disability, any impairment the employee may have as a result of such an addiction, such as sclerosis of the liver, may be a disability.
So remember the Information Commissioners good advice when considering whether to test or not as their Code’s good practice recommendations say:
- Only use drug or alcohol testing where it provides significantly better evidence of impairment than other less intrusive means.
- Use the least intrusive forms of testing practicable to deliver the benefits to the business that the testing is intended to bring.
- Tell workers what drugs they are being tested for.
- Base any testing on reliable scientific evidence of the effect of particular substances on workers.
- Limit testing to those substances and the extent of exposure that will have a significant bearing on the purpose(s) for which the testing is conducted.
For more help and advice about such delicate HR matters contact us at www.threedomsolutions.co.uk or follow us on twitter @3domSolutions