Employee Drug Testing

It is becoming more common for employees to be tested for alcohol or other drugs in the workplace. It is necessary to balance the employer’s wish for safe, attentive workers with those people’s right to privacy.

The following industries are representative of those in which drug testing is common:

• transportation (maritime, road, rail and air)
• professional sports
• utilities (water, electricity and gas supplies)
• construction
• warehousing and distribution

Transportation

The transportation industry is unusual in that there is specific legislation setting down limits for the drug and alcohol consumption of workers. People wishing to work in transport must be willing to accept ongoing regular drug tests or they will not be allowed to keep their jobs.

The Transport and Works Act 1992 makes it illegal for railway employees – including drivers, signalers and track-side engineers – to work if they are under the influence of drugs or alcohol. The Railway and Transport Safety Act 2003 extends this legislation to cover maritime and airline workers.

Many companies in the transportation industry require their workers to have tested negative for banned substances, and to have a certificate proving this, before they can start work.

For air transport, the IATA issues their own guidelines regarding drug and alcohol limits; these are, as you might expect, much stricter than those for legal driving on the roads in the UK.

People who drive road vehicles for a living, or who may have to drive as a secondary activity in their jobs (such as sales reps), need to be aware of drugs tests “in the wild”. If they are stopped on the roads by the police, found to be incapacitated and have their driving licences taken away, then they are likely to lose their jobs as well!

Employer Obligations

Companies have a responsibility for the welfare of their workforce. The Management of Health and Safety at Work Regulations 1992 forces employers to carry out formal risk assessments on behalf of their employees. If workers who are intoxicated would pose a danger to themselves or to others in the workplace, then the company must take preventative steps. Such precautions may include the use of mandatory testing for intoxicating substances.

Human Rights

The Human Rights Act 1998 is the UK legislation enacting the European Convention on Human Rights. Article 8 of this Act states that individuals have the right to respect for their privacy.

There are, however, caveats to this. In short, people exercising this right must not cause harm to other people. Courts are likely to agree that drug testing of employees is legal so long as it is proportional and appropriate.

For example, a crane could damage property or cause harm to people if someone who was not sober operated it. Therefore, compelling crane drivers to take drug tests is unlikely to be in contravention of their human rights. If your organisation wishes to introduce such testing, you should consult a legal professional first.

Safety versus Privacy

There is a balance to be struck between safety and privacy. Employers (and most of their workers) wish to protect the reputation of their companies, and to ensure that workers and customers are safe from accidents caused by intoxication at work. At the same time, those people forced to take the tests may feel that they are invasive and unnecessary. In some industries, drug tests are taken for granted, but their use is spreading and care must be taken to ensure that they are justified and proportionate.