Drug usage in the workplace
What is drug testing?
Types of testing
The law
Conclusion
 

Drug testing is a costly and time-consuming process that is often used by organisations as a substitute for an effective drugs and alcohol policy.

There is no real evidence that regular drug testing has any effect on production or safety and NASUWT Representatives should resist it.

Despite claims from drug-testing companies, there is no real evidence that drug testing is becoming commonplace in British workplaces.

It is mainly used, often with union agreement, in safety-critical areas such as transport and energy generation. There is also increased usage in the construction industry, but the reasons behind testing in these sectors would not apply to schools and colleges.

Generally, where wide-scale drug testing has been considered, it has been rejected either because of cost or doubts over the effectiveness.

Nevertheless, there is a very aggressive marketing campaign by a number of US-based drug-testing companies and NASUWT is aware of a small number of education employers seeking to introduce drug-testing regimes into schools.

It is clear, however, that drugs, whether legal or illegal, can pose a major safety risk and schools/employers should have clear substance misuse policies, negotiated with NASUWT Representatives, which address these issues in a fair, open and non-judgemental way.

NASUWT has a checklist for substance misuse policies which can be found on the right/below.

This guidance is intended to help NASUWT Representatives respond to any proposals for drug testing.

Drug usage in the workplace

• The latest Crime Survey for England and Wales showed that around 9% of adults aged 16 to 59 had taken illicit drugs at some point the previous year.

• These figures have been falling slowly since the late 1990s, when around 12% of adults aged 16 to 59 had taken illicit drugs at some point the previous year.

• The figures for young people (16-24 years) have fallen dramatically during this time, however, from 32% to 16% reporting any drug use in the preceding year.

• The most common illicit drug used is cannabis, followed by cocaine.

Many of those who have taken drugs in the last year are not in work because they are unemployed or unable to work.

Of those people who are in work, the vast majority restrict their intake to social use at weekends.

Among people who are in work, the use of prescription drugs is much more common, with one in four adults prescribed:

• Benzodiazepines - anxiety and insomnia;

• Z-drugs - insomnia;

• gabapentin - neuropathic pain;

• opioids - chronic pain; or

• anti-depressants - depression.

Many of these drugs can have a significant effect on performance, concentration or alertness.

What is drug testing?

With the exception of alcohol testing, most drug-testing methods do not actually test for the presence of drugs because most drugs break down very quickly in the body.

Therefore, the test looks for the chemicals that remain after the drug breaks down. These are called the metabolites.

The metabolites of drugs can be detected in blood, urine, hair, sweat or saliva. The most common type of testing is urine.

The presence of drugs can be detected in urine, for most drugs, for up to three or four days after use, although in the case of some drugs such as cannabis and benzodiazepine they can be detected for several weeks, especially after heavy use.

Drug use can be detected in blood for roughly the same period or slightly less and for an even shorter period in saliva.

Most drugs can, however, be detected in hair for up to 90 days.

Different companies will test for different drugs, but the most common package is a urine test for cannabis, cocaine, amphetamine, methamphetamine, benzodiazepine and opiates.

Unlike alcohol testing, what drug testing will not tell you is whether a person is under the influence of a drug or the level of impairment. It will simply tell you whether the metabolites of a drug are present.

Anyone who conducts any kind of analysis for drugs should be accredited by the UK Accreditation Service and comply with the International Standard for Laboratories (ISO 17025).

There are a considerable number of different types of drug test, but they all work in a similar way.

Tests may produce ‘false positives’, so if a sample proves positive, it should be subject to a confirmation test which is more precise but also quite expensive.

Even once a positive result is confirmed, it should not be acted upon until the person who gave the sample has been interviewed by a medical doctor to find out if anything else could have resulted in the positive result.

Types of testing

Pre-employment: This is when an employer screens all potential employees or applicants prior to them being employed. This is when members are at their most vulnerable because they are not employed and have far fewer employment rights and are not covered by grievance or appeals procedures.

Random testing: This involves selecting a number of employees at random at regular intervals and testing them. Drug-testing companies claim that it is a major deterrent, although in the USA, where it is far more common, it has been claimed that users are more likely to switch from cannabis, which remains in the urine for much longer, to harder drugs which disappear from the system much more quickly.

Post-incident: This is where those involved in a safety-related incident are tested quickly after the incident takes place and will rarely, if ever, be appropriate in an educational setting.

Drug testing does not accurately indicate that a person has taken an illegal drug.

In some cases, the metabolites of the drugs detected are the same, or similar, to drugs used in prescription or even over-the-counter medication. That means a person can be given a positive result simply because they have taken a flu remedy.

There have also been cases of people testing positive for opiates, heroin and codeine, because of consumption of poppy seeds in cakes or bread which can give a similar reading.

Even when it does identify drug use correctly, what the test shows is simply whether the residues of a drug are present. It cannot tell with any certainty when the person took the drug or whether they were under the influence of the drug when the sample was taken.

The biggest criticism of any form of drug testing is that it does not tell an employer what they want to know, which is whether someone is or was under the influence of drugs while at work. It will, at best, tell you that the person is likely to have consumed a particular drug in the recent past.

Research by the Health and Safety Executive (HSE) in 2004 was unable to show any link between drug use on its own and workplace accidents, although this might be because of the very low levels of actual drug use while at work.

A 2014 review of all the research on workplace drug testing also found ‘the evidence base for the effectiveness of testing in improving workplace safety is at best tenuous’.

The law

There are a number of industries where drug testing is legislated for, such as the aviation, rail and shipping industries, which do not include schools or colleges.

Although the possession of banned drugs is illegal, a person cannot be charged with a criminal offence simply because they test positive after a drugs test unless they have been driving.

Employers do have a duty to protect the safety of their workplace under the Health and Safety at Work Act. That includes ensuring that employees are not working under the influence of drink or drugs.

Employment tribunals have also ruled that an employer cannot dismiss someone simply because they have been found in possession of drugs outside the workplace.

No person can be forced to provide a sample of urine, hair, saliva or blood for any purpose.

However, if a person has a contractual obligation to provide a sample and refuses to do so, courts have ruled that, in certain circumstances, that can be grounds for dismissal.

Although the employer has to get consent before a sample is taken, in practice it is very difficult for a person applying for a job, or if ordered to give a sample by their employer, to refuse, so the concept of consent in a workplace context is meaningless.

Teachers should also be entitled to privacy when giving a sample.

The privacy issue is more commonly an issue when urine samples are used.

Some employers have argued that another person should be in the room when a person is giving a sample to make sure it is not substituted or diluted. This is unreasonable and a breach of human rights.

In addition, a number of people have an inability to pass urine in front of another person.

Privacy and data protection considerations have also been addressed by the Information Commissioner’s Office (ICO), whose data protection code on obtaining and handling information about workers’ health puts strict limits on the health information that can be obtained by employers.

It concludes that, in most instances, alcohol and drug testing is an unwarranted intrusion.

The fourth part of the ICO’s Employment Practices Data Protection Code Information about Workers’ Health says, ‘…very few employers will be justified in testing to detect illegal use rather than on safety grounds’ and ‘the collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons’.

It also adds, ‘Even in safety critical businesses such as public transport or heavy industry, workers in different jobs will pose different safety risks. Therefore, collecting information though the random testing of all workers will rarely be justified.’

NASUWT does not believe that safety grounds are sufficient justification for drug testing teachers in schools, as activities are not generally safety-critical.

People who have a medical condition which requires them to take medication may also have additional protection.

If a person were taking a prescribed medicine, including an opiate, which they required for a condition that meant they were disabled under the 2010 Equality Act and an employer did not employ them, or dismissed them, solely as a result of a drug test, they might well have a strong case for action against the employer under the Equality Act.

This is because the employer should have discussed the effect of the medication on the person and, if there were concerns, considered making adjustments such as moving them to a different role.

Where an employee is dismissed as a result of a positive drugs test, the employer would still have to show that drugs had a detrimental effect on the employee’s ability to do the job.

So, if there is no evidence that there has been any drug use at work or that their performance was influenced by illegal drugs, tribunals may consider the dismissal unfair.

As the law is unclear in any situation where a person is facing disciplinary action or dismissal following a positive drugs result or being threatened with action for refusing to take a drugs test, they should contact NASUWT for advice.

Conclusion

Those who oppose drug testing are often criticised as undermining the fight against drug use in the workplace.

NASUWT firmly believes, however, that any person who is under the influence of drugs while working can be a danger to both themselves and their colleagues/pupils.

However, there is no evidence that simply introducing drug testing, as opposed to a comprehensive drugs and alcohol policy, actually reduces injury rates.

Policies based on testing rather than whether someone is under the influence of drugs may also lead to some workers turning to harder drugs for recreational use as some of them disappear from the system more quickly than cannabis.

In other cases, a person may have a physical addiction to a substance, in which circumstances, they will need help to address this.

The most effective way of ensuring that drugs are not a problem in the workplace is to have a comprehensive drugs and alcohol policy that seeks to support those who need help in a non-judgemental way.

NASUWT is clear that drug testing is an expensive yet ineffective way to address drug/alcohol issues in the workplace that should be addressed through a properly negotiated substance misuse policy.

NASUWT Representatives should resist any proposal to introduce workplace drug testing.

Where schools/employers are seeking to introduce such an approach, further advice should be obtained from NASUWT.