Some 200 million working-age people between 15 and 64, or 5 percent of the global population, used illicit drugs at least once during 2005, according to the Annual Report of the United Nations Office of Drugs and Crime. Drug and alcohol abuse is a global problem, so it would be natural for U.S. companies expanding their CW programs internationally to include screening as part of their contingent hiring process. However, those looking to implement drug and alcohol screening in Europe need to be very mindful of local laws and customs. What is possible in the U.S. may run afoul of privacy laws in Europe, where the rights and protections for employees (and potential employees) are more guarded.
Private employers have a fair amount of latitude with regard to drug and alcohol testing for their workers, though policies do vary somewhat from state to state. In Europe, meanwhile, local laws vary widely. It’s really only in Finland (2003), Ireland (2005) and Norway (2005) that clear legislation exists regarding drug testing in the workplace. Elsewhere, much of the legal framework, where it exists at all, comes from interpretations of a combination of various national laws, including those on Labor Codes, privacy, data protection, and health and safety at work.
However, all members of the European Union do abide by The European Convention on Human Rights as well as EU directives on data protection and health and safety at work. Therefore, there is some degree of harmonization on basic principles. There is often a clearly qualified level of risk/response, though qualified in various different ways: many countries state that testing can take place when there is a health, safety or security risk, or when it is “necessary,” “proportionate,” “justified,” or “reasonable,” or when there is suspicion of drug-taking. In Europe, the emphasis is generally placed on the health aspects, rather than the possible illegality of drug taking: in many countries, occupational doctors can only inform the employer whether an employee is “fit for work,” rather than revealing the full results of the test.
Obtaining the consent of employees to be screened via their employment contract is useful in some countries like the U.K. However, Belgium and Finland believe that fundamental rights such as the right to privacy are indivisible and therefore an individual cannot consent to waive such rights.
Countries also vary considerably in their emphasis on testing before or during employment. Pre-employment testing for screening purposes is actually illegal in the Netherlands; however, testing is permitted for job applicants in some countries in certain situations.
Looking in more detail at the largest European markets for contingent labor:
United Kingdom. In the U.K., the legal position on drug and alcohol screening at work is somewhat confused. There is no direct legislation relating to this matter and important legal questions hinge on interpretation of a range of provisions in health and safety, employment, human rights and data protection law. An employee must give consent for a drug and/or alcohol test to be undertaken and this must form part of a fully documented health and safety policy. Employees cannot be forced to undertake a drug test. Some companies do use drug and alcohol screening as part of their recruitment process. However, unless the employer's policy addresses a specific legal obligation, a substantial safety risk or a public expectation of probity, then denial of employment on the basis of a positive screening may be challenged and found to be unfair. Nevertheless, the Chartered Institute for Personnel Development has estimated that drug and alcohol abuse in the workplace costs the U.K. more than £2 billion annually. Alcohol and drug abuse combined account for an estimated 14 million lost working days. As a result, drug testing in the workplace and monitoring for alcohol misuse are becoming increasingly prevalent.
Germany. Similarly, in Germany, drug testing, background checks, psychological evaluation and other pre-employment screening is permitted, but only if specifically related to the proposed employment. Thus, companies cannot impose blanket screening on all candidates. It is not clear if a staffing agency can subject a temporary worker to separate screenings for each agency client (or even if the customer’s requirements can be made a condition of employment with the agency). An employer cannot be forced to hire an individual who refuses to submit to improper pre-employment screening; but conducting an impermissible test — or refusing to hire individuals because they refuse to submit to an impermissible test — could expose the prospective employer to penalties for violation of privacy laws; thus, it is critical for an employer to have a clear rationale, supported by public policy and the law, for all background and drug tests required of potential employees or temporary workers.
France. In France, employer’s options are even more restrictive. Although employers are not legally allowed to routinely test whether a worker is a drug or alcohol user as part of a selection process, the French Labour Code indicates that they can request the local authorities for health and safety at work (inspection du travail) to undertake screening on their behalf. In May 2011, the Special Committee on Ethical Matters (Comité consultatif national d'Ethique, CCNE) gave guidelines indicating that the routine use of drug and alcohol screening should be restricted to workers in roles with high safety risks. The recourse to screening must be included in the employer business’ internal rules, and the reasons for the test as well as potential consequences must be clearly explained to the worker ahead of the test. The employer has to ensure the confidentiality of the results. The local authorities for health and safety at work are allowed to inform the employer whether the employee is fit for the role, but are not allowed to provide any further details on the results of the tests. It is up to the local authorities for health and safety at work to assess whether the quantities of drug or alcohol measured by the tests are compatible with the work.
Some European countries specifically penalize unjustified testing with criminal fines, either as a breach of workers’ privacy or as a breach of privacy generally. Any changes in contracts to include a clause agreeing to testing should also be negotiated with unions or workers’ associations. Therefore, employers need to be particularly sensitive and careful, and should always seek good local legal opinion.
International guidelines. Given the inherent controversy surrounding this issue and variance in practice globally, the International Labour Organization has published a set of good practice guidelines:
- Policy: There must be a written policy document, the content of which is known to all concerned. The policy should include prevention, identification, counseling, treatment, rehabilitation, and details on at what stage disciplinary action will be taken.
- Confidentiality: Must be strictly observed.
- Quality: Initial screening and confirmation methods must be based on different principles of analytical chemistry or different chromatic separations (first test immunoassay, confirmation gas chromatography). Tests should be carried out by an accredited laboratory using accepted guidelines for procedures.
- Consultation: Policy should be developed in consultation with workers and/or their representatives.
- Review: Procedures should be regularly reviewed to make continuous improvement.
- What should an employer do instead of, or in conjunction with, testing?
- Have preventive policies and programs in place guided by the ILO Code of Practice, 1996.
For further information on the legal status of drug testing in the workplace by country, please refer to the European Monitoring Centre for Drugs and Drug Addiction, or the European Workplace Drug Testing Society.