Reportedly, drug use is on the rise and this may be having an increasing impact on the workplace. The issue of drug use among employees raises an uncomfortable set of questions for employers including those around whether it is any of the employer’s business and, if so, what they can legitimately do about it, says Gudrun Limbrick. All too often, it would seem, employers are responding by burying their heads in the sand.
A recent survey by Crossland Employment Solicitors found that one in five UK employees admits to regular drug use, and that 45% of these feel it has affected their work performance. The survey also found that only 40% of companies have a specific policy related to drugs and less than a fifth have carried out workplace drugs testing on their employees.
Drugs and the employer
For many jobs — including driving, operating machinery and carrying out medical procedures — it is imperative to have a clear head. The safety of the individual employee, colleagues, customers and members of the public can be at risk if the employee is unable to carry out his or her job properly because of the influence of drugs. Drugs may also have an effect on performance that is not a health and safety issue but impacts on productivity or customer service. It has been argued that taking certain drugs actually improve performance or enable the employee to cope with stress that would otherwise be unbearable. However, it can be assumed that most drugs impacts are undesirable in the workplace, even if it simply encourages others to take drugs.
For these reasons, drug use can be very much an employer’s business and, of course, it is not only about drugs that are taken during work time, but those taken in breaks, evenings off, mornings and at the weekends that may continue to affect performance in the following work time. In this way, activities carried out in an employee’s own time may be a concern for an employer.
Developing a policy
The first step an employer must take is to develop a thorough policy on drug use. This should include reference to any rights the employer gives itself to carry out testing. It should specify on what grounds testing will be carried out and the consequences of an individual failing a drugs test. If employees are to be tested randomly, it must specify how these random candidates are to be selected and why this is being done. The policy may also outline what employees should do if they suspect a colleague of taking drugs and what they can expect to happen as a result. It is significant that a third of those employees questioned in the Crossland research said that they suspected a colleague of drug use. Without these clear policies issued to all employees, companies very much have their hands tied in terms of what they can do about suspected drug use among their employees.
Drugs tests themselves are relatively easy to purchase and relatively easy to carry out. For just a few pounds each, both urine and saliva kits are available online and can be bought individually or in bulk. Results can be available immediately or sent off to a laboratory for independent verification. This is probably the easiest element of drugs testing, which must be preceded by justification, monitoring and evidence-gathering.
If an employer suspects that the drug use of an individual employee is adversely affecting his or her work, and the employer’s own policies clearly give it this power, it can test that employee for drugs. However, the employer must be very clear why it is doing so. It cannot, for example, be just because there is a rumour going around if there is no other evidence. In that situation, the employee could rightfully feel that he or she was being unduly harassed or singled out by the employer. Testing, after all, can be an invasive procedure, in that the employee is generally required to give a urine sample. It is also touching a very personal issue and is very much casting aspersions on the character of the individual, as well as suggesting that his or her work is not satisfactory or not safe.
Testing and written consent
Employees must give their clear, informed and written consent before a drugs test is carried out. They must, for example, know why they are being tested (if it is just them, what are the grounds? If it is part of random section, how were they picked?). They should also know what they are being tested for and what the consequences of a failed test are. Can they have a retest? Can they appeal? Any individual can, of course, refuse to take a drugs test. The employee handbook should be very clear about the consequences of refusing to take a test. They may also have the right to refuse a urine test, but request a saliva test or a hair test or vice versa. Again, these possibilities all need to be part of the workplace policy and clearly explained to the individual.
As with any medical issue, the employer has a responsibility to keep the results of any individual’s failed drugs test private. Of course, even for drugs tests that show no drug use, the results cannot be shared with anyone unless the individual gives explicit consent. To reveal test results would be a clear breach of confidentiality, even in circumstances where the individual is sacked because of those results.
An individual can be sacked for drug use where it is clear in the employee handbook that drug use is a cause for immediate dismissal. However, employees may have the right to take the case to tribunal if they feel that this is not fair. They could argue that the test was incorrect or that the drug use did not take place in the workplace or did no impact adversely on their ability to carry out their job. It is for this reason that any employer testing employees for drugs has to be very clear why it is testing, what it is looking for and what the consequences are of a failed test in its policies and communications with each individual being tested.
Help for the individual
Where an employer feels the drug use of an individual is not causing safety issues or adversely affecting his or her work, it could, of course, decide to encourage the individual to get help (such as drugs counselling) or give him or her time to address the issue rather than be dismissed. This is an option only if the employer has stated this as being an option in the employees’ handbook and offers all those who fail tests the same treatment. Singling one person out for special treatment is not an option.
The ball is very much in the employer’s court in terms of drugs. We have been given notice that workplace drugs issues are likely to be on the rise. Every employer should ensure that they have clear and comprehensive drugs policies and get these checked by an advisor to ensure that they are sufficiently robust. Being without such policies can mean that we could be responsible for the actions of high employees and largely unable to help ourselves.