Workplace drug testing

Any employer who drug tests staff is likely to face the challenge of dealing with a positive result, which is not always as straightforward as it may appear.

Illegal drug use is widespread and managing a situation in which an employee fails a drugs test will always be difficult.

There is the personal impact on the employee, the likelihood they will lose their job and that it could be a symptom of a much bigger problem.

And for the employer, there is the obvious risk to health and safety of others who may be impacted by the role the employee performs, and to the reputation of the organisation.

Data on adult drug use in the UK from the Crime Survey for England and Wales, which published its findings for the year ending March 2020, estimated that around 1 in 11 adults aged 16 to 59 years had taken a drug in the previous year (9.4 per cent; 3.2 million individuals). [1 Cited 9.10.23] The survey also reported on the prevalence of different types of drugs, such as cannabis, cocaine, MDMA, and ketamine, among adults.

The fact a member of staff may test positive for an illicit substance may feel to many as if a subsequent decision to dismiss is almost inevitable.

But as in all cases in which the termination of an employee’s contract of employment  is a potential outcome, any investigation and subsequent disciplinary process should always be thorough and fair.

It is an issue worth looking at in more detail given a recent case in which a male airline pilot was sacked after reportedly failing a drug test [2 cited 9.10.23]

He is reported to have boasted about taking cocaine before he was due to fly a plane from South Africa to London.

The incident is said to have led to the 12-hour flight being cancelled, costing the airline around £100,000.

It was reported that the pilot has had his medical certificate withdrawn by the Civil Aviation Authority, which means he is now unable to fly.

The case shows the consequences most will expect in such circumstances, but failing a drug test at work should not mean that dismissal is an automatic outcome in all cases.

Caution should always be exercised and consideration given to the particular circumstances of each case.

The nature of the job, the level of impairment, the reliability of the test, and the employee’s explanation should all be carefully contemplated by an employer.

A disciplinary policy will usually provide a non-exhaustive list of behaviour that could amount to gross misconduct and lead to dismissal, and being under the influence of illegal drugs is often included among that list.

But not every case is clear cut. A positive drug test alone is not sufficient grounds for dismissal, as an employee may have a valid defence or a plausible explanation for the positive result 

And we have seen cases in which a decision to dismiss without proper investigation or consideration of all of the facts can result in a successful claim for unfair dismissal[3 cited 9.10.23].

A bus driver who failed a drug test for cocaine use won his case for unfair dismissal because the employer did not fairly take into account his explanation for the result along with other support for his case[4 cited 9.10.23]

The driver was diabetic, had to check his blood sugar several times a day which involved pricking his finger and licking it. His route involved a lot of students and handling cash and notes that could have traces of cocaine on them, and this could be to blame for a positive result in the drug test.

The CIPD Managing drug and alcohol misuse at work  report August 2020 described drug and alcohol misuse as ‘considerable issues’ within society and therefore also in the workplace [5 cited 9.10.23]

Of the employers that took part in the study, and that employ people in safety-critical roles, a fifth (20 per cent) did random testing for drugs or alcohol across all employees and the same proportion (19 per cent) did random testing for certain roles in safety-critical areas.

Random testing was the most popular method used, followed by testing when an

employee is reasonably suspected of alcohol or drug misuse and then post-incident

testing.

In the two years prior to the report just over a quarter (26 per cent) of employers disciplined an employee for drug misuse.

Here we take a closer look at workplace drug testing.

Can any employer drug test its employees whenever it wants to?

No, employers cannot drug test employees whenever it wants to as it has to have consent from the employees.

This will usually be as part of a contractual health and safety policy, which should be in the employment contract or staff handbook.

Testing should be limited to employees that need to be tested, the tests should be random and not single out particular employees unless there is a good and justifiable reason to do so, or it is necessary because of the nature of their job.

An employee cannot be forced to take a drug test. However, if they refuse when an employer has good grounds for testing, they can face disciplinary action.

What does a test involve?

The most popular form of testing is a urine test, which is straightforward, inexpensive and offers instant positive or negative results.

This type of test can detect different drugs such as cannabis, cocaine, amphetamine, methamphetamine, benzodiazepine and opiates.

They can identify the presence of drugs for up to three or four days after use. In some cases, particularly after heavy illegal drug use, they can detect drugs several weeks later.

Another common method of testing is a saliva test, which it is thought may be able to detect recent drug use slightly faster than comparable urine tests.

Hair drug testing, in which a strand of hair can identify drug use up to 90 days later, is rarely used and it is much more expensive than urine and saliva testing. The same applies to blood and fingerprint drug testing, which are less frequently used by employers.

Test results are usually reliable and accurate and anyone who conducts any kind of analysis for drugs should be accredited by the UK Accreditation Service and comply with the International Standard for laboratories[6 cited 9.10.23].

What does a positive test actually prove?

That residue of a drug is present and that particular substance has been used in the recent past.

A positive test at work does not mean the employee is under the influence of drugs at that time, and it cannot identify with any certainty when the person took the drug

So it does, perhaps disappointingly, not provide an employer with probably the most crucial information it requires, which is if  the worker is affected by illegal drugs while at work.

How to deal with an employee who has failed a drug test

The response to such a result is often harsh, swift and severe. However, the individual should always be shown some compassion and given support, as drug use can often be a symptom of a bigger problem such as work-related stress and an inability to cope.

An employer should consider the circumstances of each case, such as the nature of the job, the level of impairment, the reliability of the test, and the employee’s explanation.

A positive test should not mean dismissal is an automatic outcome. A fair disciplinary procedure should be conducted and the employer should act reasonably and proportionately in deciding whether to dismiss the employee or not.

Any mitigating factors should be carefully considered e.g. work-related stress, medical conditions or addiction issues, and help offered if appropriate.

Employers should aim to strike a balance between enforcing any drug testing policy and supporting their employees who may have a drug problem.