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#1 Posted : 25 July 2001 09:56:00(UTC)
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Posted By Frank Cooper
I have recently come across an issue on a customers premises whereby they are to undertake random drug and alcohol testing of both their own and contractors employees.
My company has also recently picked up work in the USA where pre-work drug testing must be carried out before work can commence on site.
Some of our people employed on these sites have objected to this and are quoting rights under the recent Human Rights Act. Has anyone had any experience of a similar situation and can anyone offer any advice?
Frank Cooper
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#2 Posted : 25 July 2001 14:19:00(UTC)
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Posted By Mark Preston
There's an article on this in the May/June 2001 issue of Management OHSE magazine
(www.mohse.com - inaccessible when I tried)


If you can't lay your hands on a copy I can photocopy and post or scan and mail it

You may also want to check the Safety list archives at

http://list.uvm.edu/archives/safety.html

for lots of recent debate on testing in the US
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#3 Posted : 25 July 2001 19:03:00(UTC)
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Posted By Steve Whittle
Here's a controvertial statement.

An MD at a site I have worked on was fielding questions during the consultation period prior to implementing a drug & alcohol policy. The policy involved pre-employment, random and for cause testing for employees and contractors.

When the question about refusal due to a breach of human rights was raised, he responded

'I have no problem with people refusing (a test) if they think their human rights are being violated, but they will not be working on my site!'

This response was well received by the majority of the workforce. The consensus was that if they were doing nothing wrong, they had nothing to worry about. During my time with the company nobody ever refused a test.

To my knowledge this approach has never been tested in a court of law. It will be interesting to see if a judge will find in favour of a company that is trying to improve safety over an individual who believes their human rights have been breached.

My opinion is that with drugs being such a large problem in todays society, a urine sample that takes about 30 seconds to supply (in works time) is not an unreasonable demand considering the benefits.

However, I emphasise the importance of clear policy and explanation of what it is trying to achieve, consultation, confidentiality, chain of custody and independant analysis interpreted by an independant doctor.
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#4 Posted : 25 July 2001 19:11:00(UTC)
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Posted By Lee Bennett
This is a very interesting one.

A friend of mine went to Amsterdam for his Stag Night and quite legally (in Holland) sampled some of the local delicacies, if you get my drift ?

How would he stand when arriving at work the following week with traces in his blood ?

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#5 Posted : 25 July 2001 19:17:00(UTC)
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Posted By Steve Whittle
In response to Lee's question there is really no straight forward answer, it depends on the policy.

Some policies are based around an individual presenting themselves for work in a fit state and not under the influence of drugs or alcohol. If an individual has taken some wacky baccy on a Friday night and had nothing since, then it could be said they have not breached the requirements of the policy because they are no longer under the influence. Apparently cannabis is detectable for up to 3 months, they can even estimate when it was last taken by the metabolites still in the system.

However, some employers may take the view that they do not want to employ anyone who takes recreational drugs in any country, even in their own time.

In my experience, when a positive result for cannabis was received, a confidential chat with the works doctor was the first step followed by a re-test at a suitable interval. The policy must not be seen as punitive and help must always be offered as a first step if an individual has a problem. All action that will be taken must be clearly stated in the policy.

I believe the more serious drugs such as heroin and cocaine are the most difficult to detect because they metabolise out of the body very quickly (about 3 days I think).

Regards,

Steve

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#6 Posted : 25 July 2001 22:14:00(UTC)
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Posted By Philip McAleenan
My response to an article in SHP may be useful to this debate:


Articles such as that published in SHP (May 01) must be challenged, not solely by ourselves in the safety professions, but by all who manage work environments and people for the assumption it makes regarding the right of employers to infringe basic human rights through general and systematic screening operations.

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.

The publication of the article in SHP implies that they are procedures developed for safety purposes, however such a proposition is negated by the list of what drugs are being tested for, and by the main picture of the article. Without exception the author details tests for the presence of controlled, and therefore illegal, substances. There are many GP prescribed and proprietary medications which adversely effect performance and therefore safety, but by their omission from this type of article, screening policies are evidently a policing operation by employers. Basic civil and human rights prohibits the State from conducting any such screening operations on its citizens, why then should private companies be permitted such a function?

The author justifies the need for these procedures and his business by reference to very dubious research. He quotes statistics published by an entertainment's magazine and a music publication. There is no reference to any peer assessed scientific studies to support his conclusions and when he does make reference to a "professional" article he misnames the body concerned. A scientific laboratory should know better than to rely at all much less almost exclusively on such tabloid reports.

As safety professionals we should seek good practice for improving safety rather than jumping onto bandwagons which ignore or are incapable of seeing the long term and wider implications of their actions. In this regard, the correct approach is to set standards for safety and performance and to expect workers to meet those standards after 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). 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 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 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 they do this. It is not for employers and advocates of drug screening to subvert justice by adopting such highly irregular practices. As safety professionals we must ensure that our concern for the safety and welfare of workers is holistic, far-seeking and ethical.

Regards, Philip
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#7 Posted : 26 July 2001 10:51:00(UTC)
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Posted By Richard
Surely one has no more "human right" to work when unfit through drink or drugs than one has to drive, or am I being oversimplistic?

People seem to be using human rights legislation for all sorts of reasons for which it was not really intended.

Is the fact that the Government takes a large slice of my salary before I get it an an infringement of my "human right" to earn a living and support a family?

Richard
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#8 Posted : 26 July 2001 12:46:00(UTC)
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Posted By Dot Tadman
I agree with Richard. If someone who is suspected of being under the influence of drink or drugs causes an accident while driving, surely the police have it in their power to get a sample by what ever means. Is that also an infringement even although they know full well that by taking whatever substance that they are not in control and so more likely to cause an accident (at work or in a car) I think that human rights don't come into it when these people knowingly take substances that leaves them incapable of good judgement. What about the poor sould that was minding their own business and is now injured/dead because of these people.

If you haven't done anything wrong then why kick up a fuss about giving a sample either of blood or urine. The doctors/nurses do much worse when you go visit them!! Is he/she infringing your human rights as well by wanting to make you well!

Dot
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#9 Posted : 26 July 2001 13:59:00(UTC)
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Posted By Nigel Lusby
The police have no right to obtain samples ' By whatever means'. Though a refusal to allow a sample to be taken can be used as evidence against you (Police and Criminal Evidence Act 1984).
One leading occupational barrister has expressed the opinion that you are not in a strong legal position if you are contractually bound to undergo an examination and you refuse, and are subsequently disciplined or dismissed.

'Contract' would appear to be the area of contention.

Regards Nigel
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