Hot topic: When is drug testing fair?

Athletes, police officers and members of the armed forces have historically been drug tested, but employers in other sectors are beginning to follow the practice. When is it fair to ask employees to take the test?

Martin Tiplady, managing director, Chameleon People Solutions

There is a lot of fuss about the extent that drug tests intrude into personal lives. Some of that fuss is misguided. 

By and large, individuals choose which industry to work in and as part of this, should accept the protocols and standards that accompany that industry. 

In certain functions, the need to be ‘clean’ at all times is paramount.

The need is not just for the individual’s reputation and standing, but also for the employer and its reputation and most importantly, for the recipient of the service.

It is important, therefore, to have in place checks that can verify that standard. 

Random testing is part of that, and it is entirely appropriate and reasonable to have such a requirement in place. That said, employers must be open and transparent about what they are doing and why, and be selective about which roles are required to be tested.  

The standard of record-keeping should be meticulous and extra special care taken to protect personal medical records.

Roujin Ghamsari, founder, Mappd HR

Drug and alcohol testing can be deemed fair when prompted by concerns for public safety, but it necessitates a considerate approach that prioritises transparency, employee wellbeing, and avoids punitive measures.

The cornerstone of maintaining fairness is the way these tests are administered.

Widespread testing of all employees, regardless of their responsibilities, can infringe upon individual privacy and foster a culture of mistrust, creating an overly parent-child dynamic between employers and employees.

Organisations must articulate the reasons behind testing and establish transparent policies, ensuring employees comprehend that the primary objective is safety, not punitive measures or unwarranted intrusion into their personal lives.

Equally crucial is the provision of support for employees who test positive. Approaches centred on punishment may deter individuals from seeking help and perpetuate a climate of fear.

Organisations must give priority to access to treatment and support services for employees grappling with substance abuse or mental health issues, with their health and wellbeing taking precedence.

Alana Penkethman, associate, Laceys Solicitors

As with most employment issues, blanket policies will inevitably lead to disputes.

While many contractual handbooks contain clauses asking employees to consent to testing, employers must always proceed with caution when relying on consent alone due to the inherent imbalance of power in the relationship.

An employer may have fair reason for testing if the job involves high-risk activities such as operating heavy machinery or driving.

However, whilst an employer may be tempted to test if an employee is suspected of being under the influence of drugs or alcohol, particularly if there are concerns regarding productivity or absenteeism, this should be addressed following the appropriate disciplinary policy.

So long as the employer behaves reasonably, there should be no need to test, and doing so is likely to be perceived as an unwarranted invasion of personal life. 

By creating a culture of transparency and support, employers can ensure that employees understand the need for drug and alcohol screening, and it is carried out with respect for individual rights.

Lisa Moore, senior employment solicitor, Harper James

Employers have a duty to ensure a safe place of work. Not only can alcohol and drugs increase health and safety risks, but they can also have an adverse impact on performance and attendance, notwithstanding reputational damage that may arise.

However, both routine and random substance testing can result in employees alleging that their right to privacy has been violated and that the implied term of trust and confidence has been breached.

Thiis could include where consent has not been obtained in advance, the basis for the testing is not deemed to be fair, reasonable, or proportionate and where results have not been handled appropriately. 

Criticism could similarly arise where consideration has not been given to other less intrusive means available that could have achieved the same result for the business.

HR Magazine – HR Editorial