Testing Times for Athletes and Employees

As the Paralympic Games start in Rio, the Russian team is barred from competing due to “state-sponsored” use of banned substances amongst its athletes.

Whilst this decision of the International Paralympic Committee has given a high media profile to the issue of substance misuse this summer, it is in fact an everyday concern for many employers.

A study by the National Social Marketing Centre estimates that alcohol consumption alone costs employers in England £7.3 billion due to lost productivity, absenteeism and accidents.

The most obvious and immediate risk arising from a worker’s misuse of drugs or alcohol (whether at work or at home) is safety.   For industries where staff drive or operate machinery, health and safety is paramount.  Mistakes can be life changing and costly.  Damage to an employer’s brand or reputation is also at stake.

In the UK, drug/alcohol testing, both before and during employment, is lawful in limited circumstances.  Businesses need to be aware of these limitations so that they do not fall foul of the law.

So what can (and can’t) employers do to protect their businesses and workers in these circumstances?

Practical Guidance for Employers

• As a starting point Employers should always consider the business need for testing and be able to demonstrate that testing is proportionate and necessary. If not, testing will be hard to legitimise.

• Testing should only usually be conducted on health and safety grounds. This view is endorsed by the ICO which has produced a helpful Employment Practices Code providing guidance about how to lawfully implement drug testing in the workplace.

• A blanket approach to testing should be avoided. Testing should usually be limited to the employees that need to be tested and carried out at random.

• Post-incident testing is more likely to be justified only where the employer has a reasonable and genuine belief that the consumption of alcohol or drug use is involved.

• Contracts of employment and/or relevant policies relating should include provisions regarding the misuse of drugs or alcohol and state exactly what the consequences of a breach of policy or a failed drug/alcohol test may mean.

• Testing can only ever be carried out with the employee’s express consent.

• The least intrusive means of testing should be undertaken and there should be transparency about what drugs or other substances the worker is being tested for

• Whilst a refusal to consent to testing, or a positive test result, may be considered a disciplinary offence an employer must tread cautiously and follow due process before making a formal decision as to how to proceed.

This article has been prepared for guidance and information purposes only and should not be substituted for legal advice.