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June 15, 2011

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MP raises workplace drug-testing fears

Improved guidance on how drug misuse in the workplace should be monitored is on the agenda after an MP raised concerns about how the tests could be used “as judge and jury” by employers.

Addressing the Commons on 13 June, Conservative MP Jackie Doyle-Price described the growing prevalence of workplace drug and alcohol testing as “great from a health and safety point of view and, through deterrence alone, could be anticipated to lead to fewer industrial accidents”.

However, she warned that the potential for a positive test to be viewed by employers as “cast-iron evidence of guilt” created a need to ensure that “the regulatory regime governing such tests and practices is adequate, and that both employers and employees understand their rights and responsibilities with regard to such tests, so that employees are not treated unfairly”.

Using the example of Joe Kelly, a constituent who, having been tested positive for heroin abuse, faced dismissal from his role following 31 years of employment with the same company, Ms Doyle-Price went on to highlight three areas of drug-testing that might benefit from clearer guidance: the collection process; the testing process; and the employer’s human-resources policies.

The collection process, she remarked, “is the fundamental aspect that should be tightened”, adding: “There must be a clear and documented chain of custody, so that samples are correctly identified and handled to prevent them from being mixed up, contaminated, or tampered with. Without a chain of custody, there is no proof that the sample belongs to the subject.”

In the case of Mr Kelly, the process was not explained, consents were not properly sought, his samples were not sealed in his presence, and he was unconvinced about the cleanliness of the process, explained the MP.

Although the testing firm’s laboratory was accredited as having met relevant standards overseen by the UK Accreditation Service (UKAS), Mr Kelly’s case prompted Ms Doyle-Price to suggest that “employers should engage only with firms that are signed up to appropriate standards throughout the collection and testing processes”.

Mr Kelly’s experience also highlighted problems with testing, as his positive sample was very small. According to Ms Doyle-Price, the testing firm’s own methodology stated that an insufficient sample would represent a failure in the chain of custody, and yet testing still took place. The firm also failed to properly calibrate the testing instrument for the size of sample.

She suggested therefore that employers and trade unions should not rely solely on UKAS to establish quality and integrity of processes but also take steps to satisfy themselves that processes are sufficient.

On the final issue of employers’ HR policies, she stressed that companies must be sensitive to the impact on people’s reputations and should not take test readings as gospel. Returning to the case of Mr Kelly, the MP said: “The test indicated serious heroin abuse over a prolonged period. One does not have to be a rocket scientist to appreciate that if this man had been a regular heroin abuser, it would not have taken a random drug test to highlight the fact.

“There needs to be some sensitivity on the part of employers about how positive tests are handled, with an appropriate appeal process if the employee, or his line management, feels that the test is not accurate.”

She suggested that in the event of a contested sample, the employer should have confidence in making available the chain-of-custody records, the lab report for the screening test, the medical officer’s full report, and a method statement for sample collection. If any of these proved unsatisfactory, the test should be invalid.

More awareness of the risks of drug testing is necessary, she concluded, so that employers and unions do not sign up to procedures that are deficient. “Otherwise,” she added, “we may find other employees dismissed on the basis of samples that are not theirs, or because they have been improperly tested. Such an event would also blight the employee’s employment prospects, and, in the interests of natural justice, we, as law-makers, should satisfy ourselves that we have done what we can to defend the rights of employees.”

Responding to Ms Doyle-Price’s concerns, the Business minister, Edward Davey, highlighted the existence of several codes of practice to assist employers in drug testing, including the Health and Safety Executive’s free booklet, ‘Drug misuse at work’. He also promised that UKAS would be asked to work alongside the HSE to improve the guidance and to expand its coverage to include the “complete drugs-testing life-cycle, from the collection of a sample to its testing”.

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