Why every business should have a drug and alcohol policy

FAQs from this webinar

Do you have any figures for drug and alcohol abuse within health and social care?

In 2019, it was reported that NHS staff took almost 7,000 full-time sick days, due to drug and alcohol abuse.

This number was calculated by looking at individual trusts’ sickness absence data. However, there are no reliable figures for the misuse of drugs and alcohol within the health and social care sector.

Our policy states that it is against the rules to be ‘under the influence’ at work. However, a drug test could show traces of cannabis in the system from weeks ago, even if the person being tested is not currently ‘under the influence’. Does this wording in the policy need to be changed for recreational drugs?

No, there isn’t any need to change the wording. The term ‘under the influence’ can be applied to all drug types that have been ingested.

’Under the influence’ is what you must evidence within a workplace setting to show that the person being tested is a risk to the safety of themselves and others.

While they may have breached the company policy, no criminal offence has been committed unless the individual in question has drugs in their possession or has been supplying them to others.

It is not an offence to have drugs in your system unless you are driving or are about to drive a vehicle.

However, one thing to consider is if the employee is going to drive.

For example, if an employee were to receive a non-negative drug test result for cocaine and they were then allowed to drive home, it’s likely that they could be stopped by the police due to an impairment in their driving. They could be subjected to a roadside drug test.

In this instance, it is highly likely that the test would lead to their arrest under the Road Traffic Act Drug Driving legalisation.

Our policy states the company has zero tolerance to drugs and alcohol. However, it has come to light that culturally it is “accepted” that individuals drink during company travel, and this has become unofficially accepted over time.

How can you then go back and discipline individuals who have been caught doing this on the basis that they have breached policy, when in mitigation they say, “everyone does it”? Is it unfair to only discipline that person who happens to have been caught?

Mobile phone use, smoking, eating, and drinking alcohol are all areas of risk for employers whose employees are expected to drive. Even if alcohol was consumed the night before and not during working hours.

As an employer, you could be liable for any damage or accidents caused, up to and including unlawful deaths, if it can be shown that you did not take reasonable steps to ensure that the driver(s) did not act negligently – even when the employer was not directly involved in the incident.

If you simply turn a blind eye because it is deemed “culturally acceptable” to drink alcohol, then you may not have a defence.

The policy should be reintroduced to show that zero tolerance applies to consuming alcohol while travelling for work.

It might also be worth considering a separate driving policy that covers all rules while driving company vehicles, personal vehicles or while travelling on company business. This should be signed by the individuals concerned to show that they are aware of the rules.

Policies and training are very effective, however if you turn a blind eye to any activity that you know is taking place, and do not act in line with your company policy when breaches occur, then you will be just as liable as the employee.

We’re looking at reinforcing our drug and alcohol policy by introducing drug and alcohol testing both randomly, and on those whom we suspect to be under the influence at work.  What are your views on those that refuse the testing? Are there any justifiable reasons to refuse a drug or alcohol test that?

Drug and alcohol testing in the workplace is not enforceable by law. An employee can refuse any test without explanation.

This means that an employee cannot be forced to provide a sample for testing, whether that be urine, saliva, breath, hair, or nails.

Chain of custody procedures must also be adhered to throughout the testing process, and written consent must be obtained before any sample collection takes place.

However, there are plenty of valid reasons why an employee might refuse a drug and/or alcohol test, including certain medical conditions.

For example, fear of saliva is a real condition, which can be tricky if oral fluid (saliva) testing is being used.

This condition usually affects people with obsessive-compulsive disorder (OCD). Individuals with the condition may fear not just their own saliva but the saliva of other people. They may also have phobias of other bodily fluids and waste products, including blood, urine, and other excretions. For many with saliva phobia, this obsessive behaviour is uncontrollable without medication and psychological counselling.

Fear of gagging, a sensitive gag response and emetophobia (a phobia that causes overwhelming, intense anxiety pertaining to vomiting) can also cause issues for individuals asked to perform an oral fluid (saliva) test.

As the oral fluid test involves placing a sample collection device in the person’s mouth for several minutes, this could be a real concern. If saliva phobia or fear of gagging are real concerns then an alternative testing method may be advised, or counselling initiated.

Shy bladder syndrome (known as paruresis) is when you have trouble urinating when other people are around. As such, the use of a urine drug tests could be avoided, or at the very least, postponed. This common social phobia is psychological and not a physical condition because nothing is wrong with the urinary tract.

Another reason why someone might refuse a drug test is if they do not want their employer to be made aware that they are on prescribed medication. For example, if an employee is taking antidepressants, they may be concerned about any perceived stigma associated with mental health issues.

Alternatively, they may be worried that any medication they are taking will interfere with the drug test result. It could even be that the drugs they are taking cause drowsiness and could impair their ability to do your job.

Your company’s drug testing policy should advise that any prescribed medication is disclosed to the individual’s Line Manager. After all, employers have a duty of care to support their employees, which could include assigning other, more suitable duties, if necessary.

Bear in mind however, that refusal to take a drug or alcohol test could result in disciplinary action or an employee being sacked, depending on the company’s stance on drug and alcohol misuse.

If you have good reasons for drug testing in the workplace, whether it be essential to do so for certain roles, or if there is reasonable cause to believe an employee is under the influence, and someone refuses to take the test, the employer is within their rights to resort to disciplinary action.

Ultimately, the onus is on the employer to show that there are grounds to test the individual concerned, and that they have acted fairly in the given circumstances.

Can eating fruit affect the reading of a breath alcohol test? Does this mean zero tolerance needs to be flexible.

It is extremely unlikely that eating any type of fruit would affect the reading on a breath alcohol test.

A breath alcohol test uses a sample of the donor’s breath to determine whether the individual has consumed alcohol.

The readout of the test is displayed as a number, known as the breath alcohol concentration (BAC), which shows the level of alcohol in the breath at the time the test was taken.

It does not measure past use of alcohol.

If a reading above 0.00 µg/100ml is provided, this result shows that there is alcohol present in the donor’s breath sample. The donor will be asked to provide a second sample of breath at least 20 minutes after the first sample. During this period, the donor MUST NOT take anything by mouth.

Following the second reading, the company representative will follow company procedure according to the result.

So much responsibility seems to be placed on the company, but there must be a high element of personal responsibility too? How far does a business need to go to help its staff?

The first step for any business should be training and awareness around the effects of drug and alcohol misuse.

This is highly effective in outlining the individual’s responsibility when it comes to drugs and alcohol.

This can also include details of where employees can seek support if they are struggling with substance misuse and helps create a culture where people feel comfortable seeking support without fear of stigma or reprisals.

Employers are not expected to be counsellors but, in the very least, they should know how to communicate with employees about the issue.

The business may have an occupational health function, and some organisations also have employee assistance programs or health plans that offer drug and/or alcohol counselling.

Every business is different; however, a good employer will ensure the environment is as supportive as possible for employees who may be struggling.

If you are seen as having treated an employee unfairly, resulting in their dismissal, then you could end up facing an employment tribunal.