Posted By Philip McAleenan In respect of a number of recent threads, the following short article may be of interest: Drugs’ testing is an invasive procedure, whether it involves taking body fluid samples or cutting hair, and invasive procedures beyond those necessary for surgical purposes or expressly sanctioned by proper laws, constitute an assault on the individual, no matter how minor the physical hurt caused. It further presumes a state of guilt with the onus on the individual to continually prove his/her innocence. Many policies state that the testing procedures have been developed for safety purposes. However such a proposition may be negated if the list of drugs that are to be tested for are “controlled” drugs, and therefore illegal, substances. Indeed a list must be developed in order for drugs screening to be effective as there is no single test that will detect all possible drugs in the body. Tests are drugs/chemical specific and therefore it is necessary to decide which are to be tested for. If an employee is told that they are to be tested for a particular drug (illicit or not) they are in effect being told that they are suspected of using that drug. There are many GP prescribed and proprietary medications that adversely effect performance and therefore safety, but by their omission from a company’s testing procedures, drugs screening policies are likely to become a policing operation by employers. If basic civil and human rights prohibits the State from conducting such screening operations on its citizens, why then should private companies be permitted such a function? Safety professionals should seek good practice for improving safety. In this regard, the correct approach is to set standards for safety and performance and to expect workers to meet those standards after appropriate induction and training has been provided. Where workers fail to meet the required standard (or appear likely to be unfit to do so) then the role of the manager is to work with the employee to determine why and to inform him/her of the requisite performance requirements (including abstinence from substances likely to impair performance, and to report the taking of medication that may do so). It is by setting the standards, monitoring performance and, where necessary, retraining or removing consistent under-performers that good safety practice is established without the infringement of human or civil rights. In these circumstances it is immaterial whether the under-performance is due to incompetence, medication or drug use, the approach is the same and is acceptable, in law and in principle. If any individual worker is involved in “illegal” activities, it is up to the police to collect the evidence and to prosecute, and there are internationally recognised standards controlling how this is to be done. It is not for employers and advocates of drug screening to subvert justice by adopting such highly irregular practices. Safety professionals must ensure that their concern for the safety and welfare of workers is holistic, far-seeking and ethical. Regards, Philip

Posted By Philip McAleenan David, it is an article I wrote a number of years ago and an edited version was published in SHP letters (I think) but is also published on my website, www.web-safety.com (Look in Myth or Reality on the left side-bar). I would be interested in your views if you wish to discuss our respective views either here ort via e-mail, I would be happy to do so, regards, Philip

Posted By martinw Rob35 the police may only normally stop your vehicle and test you for being under the influence of drink or drugs if they suspect an offence of having taken place. As far as I know there is no legal basis for stopping and testing without some prior cause, eg erratic driving or having no lights on at night: once stopped for another reason, may see dilated pupils, may be unduly nervous or laughing etc. Loads or reasons could be used. Needs to be suspicion in order to carry out a test. Martin

Posted By martinw Rob there is a difference here in that when you are stopped by the police and required to give a specimen of breath etc etc, failure to do so or the specimen showing you over the limit confers power of arrest within written statute. No such power exists in your workplace I imagine. Then it falls within HR policy and suspicion of gross misconduct if it is in the policy not to be under the influence when at work. Catch 22 - how do you prove it? When it comes to the workplace I would revert back to Philip who began the thread, who no doubt will be able to give better input. I have never been tested nor worked anywhere that required it other than when I joined the police many years ago. Sorry not to be more help but I would rather not guess! Martin

Posted By martinw Trouble is though the tests have to be exact. I know of cases where people have tested positive for opiates only to have it proven later that they had taken over the counter preparations containing codeine; and hair drug testing shows use within months, whereas oral fluid swabs indicate use within days and even hours. Where do you draw the line? What is 'under the influence' for drug use? Have you a scale like there is for alcohol eg plus or minus 35? What if they took it three days ago and their pupils are still dilated(unlikely I know but you get the point). Data protection comes into it as you may have to publish that drugs have been taken - which drugs and by whom - and how you stored this information. And what happens if there is an appeal? Is there potential for storage of the sample for independent re-testing? Best thing IF you are going to do it is to get it written into Occi Health policy of any future contracts of employment that drug testing will take place etc. I really do not agree with it unless you are a pilot or train driver and even then really difficult: but Article 8 of the Human Rights Act 1988 has been unseccessfully used as a means to stop drugs testing as I understand it. If you are going to do it then do it properly, but it is probably more hassle than it is worth.

Posted By Rob35 As stated above we use a 'Zero Tolerance' so any alcohol and drugs is too much :-0, as stated what is a safe level? Only had one can of lager at lunch time!!! But it is a screening device, if needed we send person to out occupation health specialist who under takes a urine sample. To give an example, today a worker was concerned that he had had a drink the night before and asked to be tested (Yes, he asked me to test him) he showed 8 ug/100ml of breath, well under the 35 drink drive limit, however it fell within our policy, and he stopped work. We know from our experience that this low level can dissipate within 30 minutes, tested again after 20 (as per policy), down to 4, 20 minutes later zero and he was back to work. As for drugs, questionnaire undertaken before the test, 2 simple questions. If on any medication, we check the ingredients to confirm if it will give a positive result. I have to be honest, that I was generally surprised at the level of acceptance from the entire workforce. Also, we have the same rule across the company and office staff full within the same 'Zero Tolerance' and yes I have had the pleasure of testing Directors ;-)

Posted By Jez Corfield In the world of trains and buses, as well as other 'safety critical' activities, I suspect the human rights of the many outweigh the human rights of the individual. In many jobs a 'wait and see' approach is fine, where a drop in work performance has no affect on others, lets not worry about policing the workforce, lets concentrate on work performance and dealing with problems as they arise (drug related or not). In areas where there a drop in performance might injure or kill people there is surely no such room for manoeuvre? And in these circumstances drug testing of any description is warranted? Thats my take on it anyway. Jez

Posted By martinw I suspect that the issue would be more capable of being rated in terms of statistics if RTA's, work related or not, were reportable under RIDDOR. I do't mean that we should start discussing RIDDOR generally- NO, please no, - but specifically, would someone being found with drugs in their system be reportable as a dangerous occurance or near miss if they were operating machinery etc?

Posted By Philip McAleenan Rob, one of the difficulties with a zero tolerance approach to drug and alcohol use is that you either state that you will not tolerate the use or presence of any drugs/alcohol in the system whilst at work, in which case you have a massive problem in that the vast plethora of drugs available would make testing a phenomenal task, whilst leaving the problem of non-drug induced effects on the body outside the policy, as in the inhalation of solvents used in the workplace (my thanks to David for this example). Alternatively, you list the drugs that are not permissible and test for those. But if your list includes non-legal recreational drugs, you may end up asking an employee to submit for testing for cannabis and by implication accusing him and that is where the industrial relation begins to fall down, even if unions etc have initially agreed the policy. The other question that comes to mind is whether the policy is a company policy, in that it applies to all, or an employee policy, in that it applies to employees only, or particular grades of employee. If it is a company policy than it must be applied rigorously and absolutely, top down. Now if an employee faces disciplinary for gross misconduct for having alcohol in his system (a pint at lunch time) will the chairman of the board face the same disciplinary charge and consequence for a glass of wine with a client at lunch time? If not then you have a policing policy and not a drugs and alcohol policy. (I appreciate Rob that you have done this but not all drugs and alcohol policies are so democratic). And if you are going to have a drugs and alcohol policy it makes sense to have it applied absolutely as the underlying assumption is that if the presence in the system negatively affects performance and competence it must do so to all, and the greater the responsibility that one has for the wellbeing of the company, the greater the responsibility not to compromise that wellbeing. After all the contract of employment is a two way contract with employer and employee owing each other duties not to harm the other, and harm to the company is harm to the employee. If we are looking for top down leadership, then the rules and policies must be applicable to all. Looking to the human rights issue, the UN and European charters and conventions of human rights assures every citizen on the planet of certain fundamental rights that have to be guaranteed by the state. If I assault someone I am not breaching human rights law, but if the state sanctions my actions by failing to punish me despite the evidence, or turning a blind eye to my activities or even authorising my activities, then the victims human rights have been breached, not by me but by the state. If I refuse to submit to a drugs test b y my employer and lose my job as a result m y human rights have not been breached except and until the state permits the employer to legitimately do this. If I am under the influence and pose a threat to others safety there exist state sanctions that will prevent me causing them harm or punish me for actually harming them. But the mechanism for this is through the police and judicial processes. The employer is extra-judicial and if he is allowed to accuse, try and punish me absent any recourse to the legal process, then my human rights have been breached, even if I was under such influence. That is the nature of the law and that is how we all are to be protected against arbitrary and unlawful actions being taken against us. Human Rights failures result from overt actions or omissions by the state, and only the state. Martin has made a valid observation on the powers of arrest being conferred by law. By the same token the powers to test for drugs and alcohol are also conferred by law, and such laws have been made in certain safety critical jobs, as in elements of the transport industry where the consequences of driver failure are likely to be catastrophic. But such laws do not extend to all who drive for work, as the normal laws available to the police are deemed to be sufficient and the power lies with the police, not the employer, who exercises that power when he has just cause to do so. If he has no just cause, he cannot exercise his powers or risks the case being thrown out of court. John raises an interesting point on the employer becoming aware after testing (allowing that it was 100% accurate and correct) that an employee has illicit drugs in his system. What does he do? Is he legally bound to report the finding to the police? You can imagine what that will do to employee relations and any drugs policy that may have been agreed. Does he simply fire the person? Again, industrial relations will suffer with such a policy with employees refusing to be tested, and then taking case to the industrial tribunals if they are sacked. Does he offer help, e.g. counselling, rehab etc? And what if the employee refuses the help? What if the employer does nothing, what use was the policy in the first place then? Of course here we are focussing in illicit drugs and all too often (but not always) the drugs and alcohol policies are about the presence of illicit drugs in the system and thus are a policing operation rather than a genuine attempt to improve safety. As has been pointed out there are many drugs on the market, prescription and over the counter, that can show up on specific tests, but not all affect performance, or the performance of everyone who uses them. And there are many other substances on the market and used regularly by all that will also give positive readings, but which may or may not affect our performance. And here’s the point, just because the test detects the presence of drugs/alcohol, it doesn’t mean that the performance of the individual is adversely affected, and that is a problem with random testing in the absence of negative performance by the individual being tested. What’s the point other than to somehow exercise undue control over them? And if their performance is such that it raises concerns about safety, productivity etc. a good employer/manager can deal with that without recourse to testing them for drugs. Let me throw one more issue into the pot. Athletes are tested to determine whether they are taking performance enhancing drugs, and are disqualified if they test positive, because (amongst other things) it gives them an unfair disadvantage. Is there a case therefore for the use of performance enhancing drugs in the workplace? The question is not facetious; for centuries artists, poets and musicians have been producing the greatest artistic works under the influence of hallucinogens and opiates, and some religious mystics still use hallucinogens to commune with their god and guide the moral and spiritual lives of their devotees. And of course drugs are used to cure us of illness, improve our health, reduce depression etc. Regards, Philip

Posted By B Smart Lets all cut out the BS!!! From a union point of view we don't want to have the Company hurt our members: The company hires someone who is averse to abusing drugs illegal or not From an employee point of view we don't want to work with someone who is a drug abuser From the Company point of view we don't want a drug abuser working for us From the Drug abusers view, I don't give a damn! I'll do what it takes! I don't care who I hurt!!! Why do we still in this day and age consider the culprit and not the victims!!! Sorry if I'm bringing up something that offends someone who abuses drugs, but you know what??? I don't care!!! Lets make a stand and STOP THIS NONSENCE NOW!!! B Smart.... Not Stupid!!!

Posted By John Richards Since the use of drugs/alcohol may be sanctioned by employment contract it is worth looking at the procedure for dealing with a person who has been tested positive (with respect to drugs and/or alcohol). This is 2009. Showing them the door is not proper procedure. Said procedure is this: *********** Gross misconduct The following list provides examples of offences which are normally regarded as gross misconduct: 1 theft, fraud, deliberate falsification of records 2 fighting, assault on another person 3 deliberate damage to organisational property 4 **serious incapability through alcohol** or being **under the influence of illegal drugs** 5 serious negligence which causes unacceptable loss, damage or injury 6 serious act of insubordination 7 unauthorised entry to computer records. If you are accused of an act of gross misconduct, you may be suspended from work on full pay, normally for no more than five working days, while the alleged offence is investigated. If, on completion of the investigation and the full disciplinary procedure, the organisation is satisfied that gross misconduct has occurred, the result will normally be summary dismissal without notice or payment in lieu of notice. ************** So you may have to show that the person was "seriously incapable" or "under the influence of illegal drugs". I see no reference to just the existence of either drugs/drink. Not only that, but false positives on a simple (cheaper) test are far from unheard of. In any case, since the levels detected are usually much lower than those at which physical/mental abilities are affected, you may even have to accept that just showing that drugs have been used is not an indicator that sufficient remains within the bodies system to affect performance/safety. Levels of alcohol within a person can remain quite high for many hours after the input of same....and some people with impaired liver function (many people have same and do not know of it) may have detectable alcohol levels for some days after consumption. If you accept that the employer has a right to impose a zero tolerance to drink/drugs then you should make it clear to employees that it means no consumption of alcohol at all, or at least for several days before working.

Posted By Philip McAleenan Martin, The safety critical activities such as air and rail transport are already covered legislatively, allowing testing to take place under strict controls. In respect of other work activities, normal management systems are considered appropriate and, when properly used sufficient to ensure that workplaces are safe and, as John describes, includes a fair and effective disciplinary process. The difficulty with random drugs testing is that someone has the power to select individual workers and test them for ...what? Drugs is a universal term covering so many different preparations that no single test is ever going to be able to detect them, therefore the tester must specify what drugs he is going to test the worker for. Let’s assume that the company has a narrow list of drugs, both legal and illicit, that are known to adversely affect performance. If the worker is told he is being tested for one of the illicit, why should he or anyone else be compelled to submit to a test that may incriminate him? You have already described how the police are permitted to carry out such tests only under law and in very specific circumstances and if they do not follow these rules the courts will, rightly, throw such cases out. On the other hand, what if the worker is told he is being tested for medically prescribed drugs? Again, no employer has the “right” to know the medical history of an individual so again the employee can legitimately say “no” in order to protect his privacy. Couple random testing with zero tolerance and apply it universally and you have an unworkable situation. Look at John’s final sentence, no alcohol at all or stay away from it for several days before going into work. Very few would work and, make the same rule for drugs and medication, that’s it; everything stops. Look at it from another perspective, what is the rationale for such policies? It cannot be to stop unsafe behaviours; people behaving unsafely would be seen as doing so and action to stop the behaviour can be taken without to such policies and John’s disciplinary measures applied, if appropriate, to the behaviour rather than the cause. Are the policies then to prevent people imbibing or ingesting substances that may, possibly, adversely affect their safety and that of others? You have said as much Martin; sometimes we must “protect some people against themselves”. How far do we then go to protect people from themselves? Are dangerous sports to be prohibited for fear of injury preventing workers coming in on Monday? Is all unnecessary driving and pedestrian activity to be curbed because so many workers and potential workers are killed and injured each year? And so we go on, reductio ad absurdum. And it is absurd, because the initial premise for random drug testing and zero tolerance policies is absurd but one that is inherently dangerous. And why is it dangerous? It is dangerous because the “we” that I have used above is not really we at all, but the employer, because these policies are company policies, and this is some burden to place or even power to give to another. Employers must therefore decide why they have the policy, the purpose of it, what drugs and alcohol are to be on the list, who is to be selected for testing, with what frequency etc. Then they invest authority in some one person or a particular department for implementing the policy. Giving someone authority over others whilst the responsibility for their actions is removed by dint of it being a policy decision rather than a personal decision is riddled with ethical issues, (the 1971Stanford University psychological experiments and the 1961 Milgram experiments in Yale may offer some useful insights). Depending on so m any factors it may end up as a one way policy, a workplace policing activity and so on. Nor should we be blasé and suggest that it couldn’t happen, look at the recent cases with databases of blacklisted workers. As I have stated in my opening posting, safety professionals must ensure that their concern for the safety and welfare of workers is holistic, far-seeking and ethical, and this means that we must thoroughly explore the rationale, practicalities and the hidden dangers of generic policies, whether they are drugs and alcohol or anything else, and raise them with employer and employee alike. Regards, Philip

Posted By Rob35 Martin / Philip, Wow, didn't check for a couple and days and look at the responses. Great debate..... I have now had to print off the thread (Trouble reading off the screen ;-)) Give me a while to digest and I will come back, but..... Our policy is a Company Policy, and as mentioned above I have tested Directors, in fact they where the first to be done, it also applies to the whole site, so contractors, as an example are informed as part of the H&S information we give them and could be tested. We also have trained testers, but mainly falls on me, we are all aware of the potential for legal over the counter drugs that could give a positive result, again this is covered within the policy. As for informing the police?? Think that is a whole debate on its own... Rob

Posted By Raymond Rapp Provided D&A testing is covered with a company policy it is perfectly legal. Failure to adhere to a company policy can be viewed a gross misconduct. It is an internal requirement unless D&S testing comes within the ambit of relevant legislation, then it could be a criminal offence.