Workplace Drug Testing in Europe, Canada, Brazil, Malaysia and Beyond
Workplace drug testing continues to grow outside of the U.S., meaning there is a burgeoning market for U.S.-based drug testing companies to jump into.
However, drug testing laws and regulations around the world are different than in the U.S. (and, in fact, even within the U.S., the laws vary from state to state).
While it would be nearly impossible to go over all the various rules and regulations from every country in the world, here is a quick guide to some key countries and areas.
In Canada, there are no dedicated drug testing laws. However, there have been Human Rights issues related to drug testing that have been dealt with differently than in the U.S. that affect how workplace drug testing is handled, as well as some guidelines set by the country’s courts.
The bottom line about workplace drug testing in Canada is that there are some safety sensitive positions that are subject to drug testing. Many of these positions can be found in the oil and gas sector.
In Europe, the following countries allow workplace drug testing:
The European Workplace Drug Testing Society (EWDTS) has developed three sets of guidelines for drug testing in the workplace:
•Guidelines for Legally Defensible Workplace Drug Testing Specimen Collection Procedures
•Guidelines for Drug and Alcohol Testing in Hair, Collection and Analysis
•Guidelines for Oral Fluid
In addition to these guidelines, drug testing programs in Europe are significantly influenced by other regulations and policies, including:
•European Convention on Human Rights (1950)
•European Directive 89/391/EEC (relative to improvements in the safety and health of workers)
•EU directive 95/46/EC (relative to data protection such as the health status of workers)
•Charter of Fundamental Rights of the European Union of December 2000 (Article 7: right to private life and Article 8: right to the protection of personal data)
Here are 5 things to know about drug testing in the UK:
• The Human Rights Act of 1998 guarantees an individual’s right to privacy. Article 8 states; “Everyone has the right to respect for his private and family life, his home and his correspondence.”
Drug testing could be considered a breach of privacy if the circumstances surrounding it didn’t justify testing. Even though this only guarantees public sector employees, it could be used as legal basis for a private sector tribunal.
• The Health and Safety at Work Act of 1974 clearly requires employers to provide a safe workplace. Although the Act does not specify being under the influence of alcohol or drugs, it is safe to say that it contributes to an unsafe workplace and thus an employer has the responsibility to ensure a drug and alcohol free workplace.
The drug-free workplace plan must be part of the employment agreement and handbook.
• The General Medicinal Council has published a guide on patient consent. It requires doctors to obtain informed consent from patients before proceeding with anything (prescription, operation, tissue sample, etc.). Informed consent means that the individual to be tested must be provided with all the information necessary to make a proper decision.
A loophole seems to exist for drug testing and informed consent in that lab technicians obtaining samples are not medical doctors and are thus exempt from the ethical standards required of doctors. However, the Gov.uk website says that employers conducting drug or alcohol testing are required to obtain informed consent. So at least, according to the government, being a lab technician and not a doctor does not exempt one from the informed consent requirement.
• The Employment Practices Code is published by the Information Commissioner’s Office and is meant to help employers comply with the Data Protection Act of 1998. Part 4 outlines what employers can or must do with information obtained from drug and alcohol testing. It summarizes drug and alcohol testing in two points: “The collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons. Post-incident testing where there is a reasonable suspicion that drug or alcohol use is a factor is more likely to be justified than random testing.”
The Employment Practices Code does not provide a legal justification or prohibition of drug and alcohol testing, only a guideline to employers.
• The Disability Discrimination Act does not classify drug or alcohol addiction as a disability, unless that addiction is the result of prescribed medication. Thus, terminating an employee for a positive drug test may be discrimination if the drugs found are from a prescription and the individual tested is suffering from addiction to them.
There are three important laws and one memo that affect drug testing in France.
• Labor Code Article R4624-25 requires medical exams to be determined and executed by a doctor and not an employer.
This means that drug and alcohol in the workplace is permitted, but only if it’s ordered by a physician.
• Labor Code Article 4121-1 outlines employers’ obligation to provide a safe work environment.
This does not explicitly mention drug and alcohol use or abuse at the workplace, but that could certainly be considered to contribute to an unsafe workplace.
• Labor Code Article 4122‐1 makes employees liable to exams to determine physical ability to perform work functions.
In some work situations, this could easily include testing for drug or alcohol abuse.
• Ministry of Work, Employment and Professional Training Memo No. 90/13 of July 9, 1990 states that systematic drug testing is not justifiable except for certain cases, which may only be determined by a doctor.
Again, it is made clear that in France, an employer cannot be the one to order drug or alcohol testing in the workplace.
Here are five industries that affect drug testing in Australia.
• Aviation – Part 99 of the Civil Aviation Safety Regulations (CASR) outlines mandatory drug and alcohol testing for all safety-sensitive positions related to aviation. This obviously includes pilots, but could also include ground support positions like maintenance, fuel, baggage, and air traffic control personnel.
It requires compliance with Australian Standards (published by an independent, non-governmental standards body) and a National Association of Testing Authorities, Australia (NATA) accredited laboratory.
CASR Part 99 is widely considered the foremost example of a workplace drug and alcohol testing policy and can be adapted to other industries.
• Construction – Fair Work Australia (FWA) Full Bench 6892 (case law) upholds that requiring safety-sensitive employees in industries such as construction is a reasonable requirement for an employer to make.
The ruling only pertains to whether an employer in the construction industry may require drug and alcohol testing, and does not contain guidelines for how and when to conduct testing. This is a good example of when CASR Part 99 could be adapted to another industry.
• Railroad – Rail Safety National Law 2011 outlines general safety regulations for the railroad industry, including provisions for drug and alcohol testing.
It permits breath, blood, and oral fluid. Beyond that, it does not specify compliance with Australian Standards or NATA labs. Interestingly, it only applies once a state has passed its own railroad safety act to adopt it. Four out of the eight states or territories have passed legislation to adopt the Rail Safety National Law.
• Mining – FWA 8288 (case law) upholds urine testing as reliable and reasonable in the mining industry.
The ruling isn’t necessarily industry specific and could be applied to other industries seeking to conduct urine testing. To make things complicated, there are other case rulings that contradict this one as it pertains to urine testing’s reliability.
• Oil and Gas – FWA 1809 (case law) concludes urine testing is unjust and unreasonable.
It directly contradicts FWA 8288 (see Mining). It proposes saliva instead of urine as the most reliable method of drug testing.
The following countries allow for workplace drug testing in Latin America:
• Falkland Islands
• French Guiana
Here are three things to know about drug testing in Brazil.
• Act 10.409/2002 calls upon private companies to help prevent the production, trafficking, and use of illegal substances.
It does not mention drug or alcohol testing, but could be seen as justification for it.
• Article 5, II of the constitution states that no one is obligated to do anything, except by virtue of the law.
For employers, this means that even if drug testing is not prohibited by law, it is not required either. Thus, an employee is under no obligation to consent to drug or alcohol testing. This could also make disciplinary action for failure to comply difficult.
• Article 5, II of the constitution guarantees the individual right to privacy, private life, honor, and self-image.
Employers must keep this in mind when considering drug testing, especially since the personal nature of the data collected could be damaging to honor and self-image if not keep strictly confidential.
Asia, specifically Malaysia
Here are five guidelines for drug testing in Malaysia, according to its Department of Occupational Safety and Health
• A clearly written and communicated policy is required for any type of drug and alcohol prevention program, whether or not it includes drug testing.
• A trial period is recommended and feedback from anyone affected is required. This acts as a sort of an advanced notice of policy.
• Consent isn’t expressly required, but employee feedback and consultation is required throughout the policy development process. This implies a certain measure of consent.
• Any type of testing is permitted given the lack of specific workplace drug testing law. However, testing must be conducted in a way that insures zero discrimination of employees.
• In cases of reasonable suspicion types of testing, a supervisor must approach an individual suspected of impairment that does not imply suspicion of drug or alcohol use, as signs of impairment may come from other sources, like fatigue.
As the examples above have shown, drug and alcohol testing around the world is as varied as it is state to state within the U.S. But if researched well and if all laws and regulations are followed, U.S.-based drug testing services will be able to easily tap into this burgeoning market.
Source; Bill Current, International Drug Testing Laws: Solving the Puzzle, DATIA 2013 Annual Conference