Monday, 29 October 2012

Drug testing and employee rights

We were recently asked some questions about why, when and how a business might safely and fairly go about testing its employees for drug use. It's a difficult area, with employers keen to protect employees, relationships and reputation sometimes going about things the wrong way, and employees left feeling confused, angry and distrusted. 

So if you absolutely must do it, how do you ensure it's done right?

We hope the tips below help create some clarity on this thorny subject...

Why might employers need to test employees? How can you ensure it's done properly?

Due to health and safety concerns- or even their own clients' requirements as in the case we were involved in- some employers may need to test employees for drug use. To do this, however, they need to use an accredited testing company and must always seek their employees' consent.  

Gaining consent

This should normally be given where an employer has grounds for testing employees under its health and safety policy. The policy should be set out in a contract of employment or in the company handbook.

Can an employer choose who to test?

Employers should limit testing to the employees that need to be tested to deal with the risk. If an employer wants to carry out random tests of these employees, the tests should be genuinely random. 

It's potentially discriminatory to single out particular employees for testing unless this is justified by the nature of their jobs.

Conducting searches fairly

Searching employees is a sensitive matter and we recommend employers have a written policy on this. Searches should respect privacy- for example, be carried out by a member of the same sex and take place with a witness present.

What if an employee refuses?

You can't make an employee take a drugs test, but if they refuse when an employer has good grounds for testing under a clear health and safety policy, they may face disciplinary action, including dismissal- though we always warn employers to investigate the circumstances around a refusal before taking drastic action. Don't assume they have anything to hide- they may just be unclear on what they are being tested for, and may be worried that medication they take could threaten their job.

As ever, we advise that employers and employees check their policies allow for testing, are widely understood by those they affect, and access the facts before taking any steps that may affect the working relationship.

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