Is corporate drug testing legitimate

Testing for substance abuse is becoming a concern in many organisations and has been raised a number of times in our recent assessments. Employers have legitimate interest, indeed often a legal requirement, in maintaining a safe workplace. Alcohol and drugs are readily available in many communities, and their use and abuse may be endemic. Dangerous equipment and hazardous substances often have the potential to inflict harm far beyond the operator, as the Exxon Valdez incident tragically showed.

In responding to these legitimate concerns, however, an employer must balance its own interests and responsibilities with the legitimate privacy rights of employees. Not everything an employee may do in their spare time is within the legitimate domain of the employer. Some test regimes appear to be rather one-sided in this respect.

Here are some of the considerations that should be factored into any policy:

• What are the legal requirements of each jurisdiction in which the employer operates? Testing is often mandated in the event of certain types of accidents or near misses. Some jurisdictions allow widespread testing while others restrict it to narrow circumstances.

• What are the locations or job functions where there is a legitimate requirement to test current or prospective employees? The truck driver hauling dangerous cargo is in a very different position than the receptionist in the front lobby.

• Is the company sending out mixed messages about safety-sensitive positions? The courts in at least one country have ruled that an employer can’t claim a position is safety-sensitive (and thus has a legitimate need for drug screening) if people are allowed to start work before being tested.

• Is there appropriate provision for employees to self-disclose a substance abuse problem and receive appropriate help (for example, through an Employee Assistance Plan (EAP)) without fear of disciplinary action?

• Does the organisation have appropriate policies regarding consumption of alcohol within the workplace or while on company business? Some jurisdictions (even in the western world) prohibit alcohol altogether while on the job. Are company social events and business entertainment being conducted appropriately?