By Dr Geoff Earnshaw at Rood Lane Medical Group

Testing individuals for drug use is becoming increasingly commonplace and has rapidly expanded in the criminal justice system; Dr Geoff Earnshaw looks at the issues for employers.

Business increasingly operates in a culture of regulation and risk assessment. Most large companies now have a workplace drug and alcohol policy. These often set out a ‘zero-tolerance’ approach on paper but are implemented to some extent by ‘turning a blind eye.’ This inconsistency can be confusing.

Drug use is illegal and is still widely viewed as immoral. The favoured recreational drugs of the City include class A ecstasy and cocaine which under the Misuse of Drugs Act 1971 carry a maximum penalty for possession of seven years in prison.

Trafficking imposes a maximum term of life imprisonment. Amphetamines, once favoured over cocaine to combat tiredness carries a five-year prison sentence for possession and 14 years for trafficking. These are not trivial sanctions. Employers, however, are not at liberty to police staff drug-taking behaviour per se over and above investigating other private behaviours.

A laissez faire attitude, however, makes little sense if it means that employees are using drugs in the workplace with all the attendant issues for themselves and others which this entails. In any case, employers would then be breaking the law themselves if they ignored what was going on.

It is easy to see how the question of whether and how to test for drug use amongst employees has become so contentious. The subject touches on moral and legal questions as well as issues of personal privacy and human rights. Confusion arises when employers conflate a liberal approach to personal and private drug use with being seen to condone drug taking activity per se.

At the same time as government and independent bodies are advocating what could be deemed a more liberal stance towards the use of drug testing in the workplace, employers themselves are increasingly testing employees.

When the CBI surveyed British companies in 2003, they found that 9% were planning to introduce drug testing in the coming year and that a half of all companies thought that drug (and alcohol) testing should not be restricted only to health and safety critical jobs including transport, engineering, quarrying and mining.

Over 50% of US companies test their employees for drugs whilst the UK is still some way behind at about 10% and rising. Seventy eight per cent of employers surveyed said that they would consider submitting employees to drug and alcohol testing if they thought that these were affecting productivity levels.

The climate in the US remains much more pro-testing and is heavily influenced by federal anti-drug policies. According to the American Civil Liberties Union, US companies are spending $77,000 for each drug user identified.

In 2004, the Health and Safety Executive published a report into ‘The Scale and Impact of Illegal Drug Use by Workers’. Data came from workers in rural and urban Wales and may under estimate drug use in the City of London. Even so, a third of those under 30 had used illicit drugs in the previous year.

The study failed to show association with work place accidents but did suggest some subtle impairment in cognitive function in the days following drug abuse.

A more comprehensive evaluation can be found in the ‘Independent Inquiry into Drug Testing at Work’ published in October 2004 by the Joseph Rowntree Foundation.

This shows that there is poor evidence to link drug use and work place accidents, absenteeism, low productivity and poor performance. The report observes that ‘people are generally not required to organise their lives to maximise their productivity at work.’

It is also doubtful that workplace drug testing reduces illicit drug use amongst employees outside work. Most studies show no link. The US Household Survey suggests that employees who currently use illicit drugs were 25% less likely to work for an employer who operated a random drug testing programme though this probably represents self-selection of employees away from these organisations.

The following principles can usefully be drawn from the growing body of evidence relating to workplace drug testing:

• Drug use is illegal and employees who are found to be using or trafficking drugs in the workplace are in breach of the law as well as their contract of employment. This is a disciplinary and police matter and should be dealt with accordingly.
• The objective of all drug testing should be explicit. In safety critical roles it is reasonable to have random and post-incident testing. In many other roles, there is little evidence that private drug use outside work is linked to accidents at work, absence or poor performance and productivity.
• Poorly formulated drug testing policies can leave employers exposed to legal challenge if they invade the privacy of employees (Human Rights Act 1998 and the Data Protection Act 1998).
• Employers wishing to test their staff should reserve this right in the employment contract. A positive result should not lead to automatic dismissal but should be a health and welfare issue where help is both available and offered. Disciplinary sanctions should be a last resort where support is refused.
• Pre-employment screening is easy to ‘beat’ for most intelligent prospective employees and is very likely to deter a number of applicants. Again what is important is a clear policy regarding the objectives of such screening and what actions would follow a positive test.
• Finally, a good drug policy is one which incorporates all of the features of best practice highlighted here and is drawn up in collaboration between personnel, managers and employee representatives.

There is no one right answer to the question of whether employees should undergo workplace drug testing. Companies must decide at what level they want their drug policy to operate – be it to safeguard the safety of all employees, to improve productivity and performance (in spite of a lack of evidence) or as a public relations exercise which projects a particular corporate image.

Only then is it possible to develop a policy which is coherent and transparent.