Alcohol and drug testing clause

You should only include our clause in the contracts of those in safety critical roles whose use of alcohol or drugs poses safety risks.

Application

It’s not appropriate to operate an alcohol and drug screening programme for everyone in the workplace. It should only be relevant where the employee is in a safety critical role, where working under the influence of alcohol or drugs could cause injury to themselves, their work colleagues or third parties, for example, they drive or operate machinery. Our Alcohol and Drug Testing Clause provides that you operate an alcohol and drug screening programme, details of which are set out in your Alcohol and Drugs Policy, and then it states that the employee’s particular role is within the scope of your programme.

Data protection

To comply with data protection legislation, the benefits of testing for alcohol and drugs must justify any adverse impact on employees (unless the testing is required by law). Testing employees for alcohol or drug use is unlikely to be justified unless it’s for health and safety reasons (as set out above). Given the intrusive nature of testing, it’s advisable to first undertake and document a data protection impact assessment before introducing it and comply with the following guidelines:

• only use alcohol or drug testing where it provides significantly better evidence of impairment than less intrusive alternatives; use the least intrusive forms of testing that will bring the intended benefits to your business
• tell staff what drugs they’re being tested for
• base any testing on reliable scientific evidence of the effect of particular substances on workers
• limit testing to those substances and the extent of exposure that will meet the purpose(s) for which the testing is conducted
• ensure random testing is genuinely random; it’s unfair and deceptive to let staff believe that testing is random if, in fact, other criteria are being used – if other criteria are used to trigger testing, let employees know what they are
• make sure testing is designed to ensure safety at work rather than to reveal the illegal use of substances in the employee’s private life
• ensure information is only obtained through testing that’s subject to rigorous integrity and quality control procedures and conducted under the direction of a person who’s suitably qualified and competent in the field.

Consent

Where you operate a screening procedure for certain roles, you can’t require employees to submit to alcohol or drug testing without their consent. So, we’ve included provision in our clause stating that it’s a condition of the employee’s employment that they agree to submit to a test whenever requested to do so, and unreasonably withholding consent is a disciplinary offence.