Policy Inclusions International



Dtec International Ltd. example “Company Drug and Alcohol Policy Advice and Construction Briefing.”

V22Jan2019

This document is purely advisory and exists to help managers understand some of the finer points of creating and implementing their own simple but highly effective Drug and Alcohol Policy.

The first thing to understand before reading this document is that there are two parts to “Testing” being first “Screening” and second “Confirmation.”

Screening can be best performed on-site to filter out the many innocent employees, but to highlight those not so innocent employees that need a closer inspection. That must be done with a confirmation sample.

Confirmation is when the screening is positive, or more correctly, a “non-negative” result. Confirmation should be legally defensible, so kept to a specialist trained Collection Technician, following a chain of custody process to a workplace accredited laboratory (so not your local hospital lab!).

This whole Chain of Custody collection process is here to protect both the employees and the employer. The laboratory can see substances and medicines that are not illegal drugs that may have triggered the screener.

For illegal drugs, the laboratory detects the body’s metabolised form of the drug, which allows them to prove both consumption of the drug and also show levels of that drug compared with workplace accepted standards.

Hence for everyone’s sake, confirmation must be done.

Please remember that for this procedure to be fully effective for the company you should complete all the steps of Policy, Educate, Deter and Detect.

Policy – Construct a clear, simple but firm policy and include any unions.

Educate – Work and drugs or alcohol don’t mix.

Deter – Use pre-employment, random, with suspicion or with cause.

Detect - DrugWipe, confirmation and the breathalyser will handle this.

It all starts with a sound Drug and Alcohol Policy. The following discussion document is an overview of the points you should look to cover in your companies own policy and has suggestions to the style of wording that has worked for many other companies.

Drug and Alcohol Policy construction.

The Company should explain to employees why they are introducing a Drug and Alcohol policy.

“The Company holds health and safety as a core business value and is committed to creating a future free of incident and injury. The effective management of any potential employee drugs and alcohol abuse is an integral part of this.”

Or for example, “Following a regular risk assessment review, the company believe it is now necessary to introduce a (more substantial) drugs, substance and alcohol screening process.

The aim is to achieve a lowering of potential risk to employees, customers and the public from possible drug, substance and alcohol use.”

The Company should simply state that “The company operates a zero tolerance to drugs and alcohol.”

Having set out your aims, you may choose a level of alcohol and then state “This company has set a level of alcohol with a limit of:-

10 µg/100ml BrAC which is for technical reasons, effectively zero; or

22 µg/100ml BrAC which is the new drink drive in Scotland; or

35 µg/100ml BrAC which is the drink drive in England and Wales”.

“Any employee, (contractor or person engaged to work directly or indirectly,) reporting for duty, either under the influence of drugs or substances, or having consumed drugs before work or on the premises at any detectable level, or with an alcohol level above that accepted by the company is in breach of company policy.”

Also state the consequences of failing to comply. “Failure to comply with the terms of the drug and alcohol policy is considered gross misconduct and will initiate disciplinary action and may lead to dismissal”.

“The effects of drugs and alcohol take time to wear off and an employee testing positive as per current accepted workplace standards, is at risk of termination of their employment regardless of when the substance was consumed.”

Cover how the company will confidentially help any one that comes forwards. “Any employee who seeks help and guidance in overcoming a drug or alcohol problem will be treated positively by the company. This will only happen if this is completely independent of being selected for a screen or test.

The Company may have a view on hiring anyone with a prior employment related drug or alcohol problem. “Any employee who has been justifiably dismissed by a previous employer for employment related drug or alcohol problems within the past (for example)12 months, will not be employed. Also, after 12 months, if someone is to be employed, the company will require further regular screening as evidence of satisfactory reform.”

The more specific your policy gets, the more it leads drug takers to find and use arguments on the process or its implementation, from which they try to find loop holes to try to defend themselves. Experience says keep it simple, succinct and very firm. Employees and managers will find it easier to understand and know the company is serious.

Drug Screening. The best form of screening for drug use in the past few days is a skin wipe and the best confirmation of this is a urine sample as that will also detect drugs consumed over the past couple of days. If current impairment is to be shown, then a saliva screen and a saliva or urine confirmation is best. Combining both saliva and skin in a single DrugWipe Dual screen is ideal to detect both recent and previous use.

Drug Confirmation. Any non-negatives to this DrugWipe Dual screen must be confirmed with another method. A urine sample collected by a trained Collection Technician, on what is deemed a ‘chain of custody’ sample, when analysed by LCMS at an approved laboratory, is the gold standard and conforms to UK Workplace legally enforceable guidelines.

Other forms of confirmation can be used such as hair analysis to look back over longer periods but be aware of their constraints, limitations and expense. The team at D.Tec can advise on these details.

Alcohol Screening. A police equivalent specification breathalyser that is within it’s 6 month recalibration, can take the first test, the screening sample. If there is no alcohol, the breathalyser will give a zero reading. If there is any number above zero, this is an alcohol reading. You don’t know if this level is falling from past consumption, or if it is increasing from alcohol consumed in the past minutes. Hence this detection of alcohol should be confirmed.

Alcohol Confirmation. The body gradually absorbs recently consumed alcohol and the blood alcohol level will rise and maximise at 20 minutes after the last drink. Hence take a new tube and repeat the breathalyser measurement at 20 minutes following the initial screen. Not sooner, not later. Ideally with a manager or witness present. This 20 minute reading is the recorded result and the figure from which you decide on further action.

Wording flexibility. A certain amount of flexibility in the policy may be required to deal with unusual situations. For example, a very knowledgeable drug user may try and deflect, delay or abuse the system, so any policy needs to highlight this as Gross Misconduct and disciplinary with termination of employment. Another example is perhaps a key member of the management or even the board may record a non-negative and require some re-education and perhaps a period of tight control. Hence the choice of the words such as may and likely is entirely the companies choice and can be used in the policy.

Definitions.

Define what the company means as drugs, substances and medicines.

“Drugs are defined as illegal drugs as listed under current laws which may change from time to time; or medicines used without prescription; or in excessive (above therapeutic) doses as defined by the toxicologist or medical review officer.”

“Medicines are defined as those prescribed by a Doctor to the employee, or bought over the counter. All medicines that have the possibility of affecting or impairing someone carry warnings in the Patient Information Leaflet (PIL) of “may cause impairment or drowsiness”. Use of these impairing medicines must be reported to a manager so they can perform a risk assessment to see if it is safe for the employee to continue performing a particular type of work.”

“Substances are those which may carry warnings against consumption inhalation or ingestion such as glue, solvents and vapours, and are likely to affect health and safety, or may be substances with various titles like Novel Psychoactive Substances (NPS), Research Chemicals or nick names like Bath Salts. This list in non-exhaustive.”

Impairing Medicines. Many companies make it compulsory for the employee when consulting their Doctor, to request non-impairing medicines and a formal warning can be issued to the employee if this request to the doctor does not take place.

“All employees on seeing a Doctor or Pharmacist are to explain their safety critical role and request that non impairing medicines are to be prescribed where possible. If such a non-impairing medicine is not possible, the employee must report the consumption of a potentially impairing medicine to the company. Failure to do this will result in disciplinary action.”

Possession. Make sure that the policy states “Any one found in possession of illegal drugs, or consuming an illegal drug or substance on the premises in contravention of the Misuse of Drugs Act 1971or Health and Safety at Work Act 1974 will be considered as gross misconduct and in breach of the company policy and will enter disciplinary procedures likely to result in dismissal. The suspect drug or substance will be confiscated and the police will be informed”.

“Any alcohol found on the premises, in desks, lockers, bags or vehicles, without authorisation of a manager will be deemed gross misconduct and subject to disciplinary measures.”

When will testing take place, for whom and how?

A company must state that testing will take place, and they must define how and when it will be done.

“Drug testing will take place Pre Employment, on Probation, at Random, on Promotion, and With Cause or With Suspicion.”

Pre Employment.

To keep the company clean and make the deterrent obvious, Pre-Employment screening is best done as soon as possible, even at first interview to surprise the candidate. State this in a letter offering the interview.

“The company has a zero tolerance to drugs and alcohol and may screen on interview.”

Then, to cover the basic administration of the pre-employment test.

“If a positive screen is found, or there is a refusal to participate, the interview procedure will be terminated.”

Probation.

During Probation or the induction period, screen more often, maybe several times a year to help get a strong message across.

“Probation screening will take place twice a year with employees chosen at random to emphasise the Zero Tolerance approach of the company.”

Random Testing.

Random is the most effective deterrent and should be by far the bulk of screening. Employees will be selected randomly using some consistent method. If you do end up in arbitration, at this point, you may have to prove that the selection system used by the company was random. This testing at random can be as simple as when the Area manager meets up with a Sales Representative he selects a black or a red ball! At the other end of the spectrum, a formal computer based employee pay roll random number selection can be generated. Do not over complicate it ! Choose whatever process makes the most practical but fair system for your company and your safety critical employees. Also decide that if the employee is not present on that day, i.e. on days off, then they should be tested on the first day they return to work.

“Random screening will be performed with a random selection of payroll numbers on one random day each week on each and every site in the company.

Random screening rate.

Make sure your testing is sufficient. Choosing to randomly select a driver once in every ten years does not appear to a Crown Court Judge in a potential manslaughter case as neither significant nor sufficient. Conversely, testing every employee once every week is also neither logical nor financially viable. Perhaps a regime where employees risk being tested every other year is a suitable deterrent! So that means 50% of the work force a year, which is 1% of employees each week.

“Random screening will involve 1% of the work force each week chosen at random.”

With Cause.

Screening With Cause is when an accident or any incident may give rise to the need to drug and alcohol screen, not just as potential punishment but to help create the deterrent and also in order to prove to the company insurers that drugs or alcohol were not involved.

“Any incident or suspicion must be reported to a manager will require an alcohol and a drug screen or if deemed necessary by the manager, possibly go directly to a confirmation urine screen.”

With Suspicion.

This is potentially more difficult. Managers are not usually trained to spot a drug user, but may have experience of alcohol consumption. In this case, screen the employee and state that

“With Suspicion screening takes place because a suspicion has arisen and the company would like to eliminate the possibility of the involvement of drugs or alcohol.”

You do not need to explain why or from whom the suspicion has arisen. This can even be done without any policy in place, simply under the Health & Safety at Work Act, where if you suspect and fail to do anything, you become liable. In other words, you have to react. However, should the situation eventually go to arbitration or a court of law, the company may be required to detail how the suspicion arose.

Who is to be tested?

The company will also need to clarify who is to be tested.

“All employees, contractors, managers and directors will be subject to drug and alcohol screening.”

Consent.

Before every screening, it is advisable to renew the employees consent as originally given in accepting this policy, or in accepting a job with this policy in the terms and conditions of employment. The easiest way is to use a Drug & Alcohol Test record sheet which has a space for signed consent.

Records.

A formal record should be taken and stored confidentially of each screening. This will have the above mentioned consent, the record of the employee, with proven ID, any recent medication, the time and date; the batch code of the screener and any non-negatives found; the device serial number of the breathalyser, plus the result of the initial screen and any second screen in numbers and words (so there is never any ambiguity) plus the times of each test. Finally, the signature of the employee, the screener and any witnesses present.

Drug and Alcohol Screening Consent Form.

Employee Name: Mr/Ms____________________________ Payroll No:_____

Employee Statement:

I hereby consent to the following screening test(s) and any possible subsequent confirmation test(s) for the detection of alcohol or drugs and/or their metabolites from a sample(s) of breath, sweat, saliva, hair or urine. I am fully aware of company policy should a positive result be detected. I accept the interpretation of my test results will be completed by the Screener (and the Witness if present) and recorded below.

Complete list of medication, Doctor, Chemist or over the counter, taken in last week:

1_____________________________________________________________

2_____________________________________________________________

3_____________________________________________________________

Employee Signature:______________________________ Date: ___/___/___

Print Name:____________________________________________________

Form of ID ________________________ Verified by ___________________

Test and Results Date: ___/___/____ Time: ____Hr____Min

|DrugWipe Dual | | | | | |

|Circle the result |Cannabis |Cocaine |Opiate |Amphet | |

|negative/positive |+ / - |+ / - |+ / - |+ / - | |

| | | | | | |

|Alcohol (Co.+ve ??? ) |Passive |First Screen Time |Second Screen Time |

| |Yes/No |Hr 12 |M 10 |Hr 12 |M 30 |

|Result in Numbers | |15 |6 |

|Result in Words | |Fifteen |Six |

Employee Signature ____________________________Date__/__/__

Screener Signature _____________________________Date__/__/__

Witness Signature ______________________________Date__/__/__

Method.

The method of testing is explained as follows for both Alcohol and also for Drugs and covers both the screening test done by your own staff, who have been trained by D.Tec and how any non-negative screening results are to be confirmed.

For Alcohol, confirmation is done by the trained screener, with a repeat test at 20 minutes after the initial non-negative screen result.

For Drugs, the confirmation sample collection technician is called immediately and subsequently collected on a 2 hour target time, 24hrs/ 365 days a year.

“All screening and testing will be performed in a confidential and discrete manor to respect employee confidentiality. Alcohol testing will be with the in calibration breathalyser and Drug testing will be by an on-site DrugWipe Dual screen on the skin and/or in saliva. All testing will be performed by a trained screener (following attached operator instructions) and any non-negatives will be confirmed by the taking a further sample for examination. Alcohol confirmation is as per breathalyser instructions on-site 20 minutes after the initial screen. Drug confirmation is with a professionally collected Chain of Custody urine sample to a fully accredited laboratory.”

Drug Confirmation services.

D.Tec’s recommended confirmation laboratory will turn out to any D.Tec registered clients within a target time of 2 hours 24/7, 365 days a year.

You need to register for this service BEFORE any call-out is made. D.Tec will register you as soon as you return the registration form. D.tec will supply you with contact details and a PIN code for security.

The D.Tec service is the most complete service level, which includes Royal Mail next day special delivery of the sample, adulteration analysis, then direct to the most sensitive machine, the LCMS, with results indicating both

those above the UK accepted levels – discipline and fire, and

those who took the drugs but at a level below the UK accepted level – discipline and closely monitor again.

The laboratory offer 2 process speeds, three working days at the laboratory is standard service and charge, and a faster, more expensive ‘Fast Track’ service of 2 working days at the laboratory. Any call outs started, but subsequently cancelled will incur a charge.

D.Tec can offer advice on the interpretation of these legally defensible results and indicate options for the company within their final drug and alcohol policy conditions.

Drug Screening.

“All screening and testing will be performed in a confidential and discrete manor to respect employee confidentiality. Drug testing will be by an on-site DrugWipe Dual screen on the skin and in saliva. Any testing will be performed by a trained screener (following attached operator instructions)”

“If a negative result is seen from the DrugWipe Dual at the point of drug screening, the negative result is recorded and the employee returns to duty.”

“If a non-negative (positive screen) is seen on the DrugWipe Dual, the employee is notified of the non-negative result, which is recorded. The next step is explained that the employee must provide a sample for confirmation purposes. There is absolutely no guilt attached at this point as it is only a non-negative to a screening test.”

“However failure to participate in, provide a sample or attempts to delay or pervert the results of a screen or confirmation sample will be seen by the company as a serious case of gross misconduct. The disciplinary procedure sees this as likely to cause immediate termination of employment.”

“The external consultant confirmation sample collection technician will attend ideally in 2 hours, and secure a confidential office and a private toilet to take the sample. The paper work will require proof of identity of the employee and a confidential history of any medication or over the counter preparations taken in the last seven days. Collection for any type of confirmation sample will be to the current workplace testing standards. In the likely case of a urine sample being required, the employee is to remove any outer clothing such as jackets and coats, and to turn out their pockets. They will not be allowed any bags and will have to wash their hands and have them inspected. They will then provide a urine sample which will be examined for integrity and tested for temperature before being split into the A and B sample and sealed in front of the employee. From this point all information is bar coded and confidential within a full chain of custody process.”

“After providing the sample, the employee will be sent home (not allowed to drive) and will remain innocent on full pay until the result is back from the laboratory. The employee will be notified of the result in a period of approximately three to five working days.”

The company must allow their manager, the ‘trained screener’, the authorisation to initiate the confirmation sample collection process immediately, without requiring things like Purchase Orders or further authorisation as remember, this may be in the middle of the night shift. It is imperative the sample is taken as quickly as possible as drugs levels rapidly reduce by the hour.

Witnesses should not be needed by either side as most people are innocent. However if the employee requests a witness, you should wonder why? We would advise that the company also has a witness present. Note that witnesses are just that, they must remain silent, unable to comment, interrupt or intervene.

“Witness for both sides are not required, but should a witness be requested, they may be present for the screen or for the confirmation sampling. However, if a union representative is requested, then a representative from any union is acceptable. Waiting for a particular person from a particular union who may not be on shift or at a different location is not acceptable and will be considered as an attempt to pervert the sample process.”

The process is to be completed even at the expense of overtime, so “If the shift or working day has ended, the employee (and Manager) will remain until the sample collection procedure is satisfactorily completed.”

“In certain situations like With Cause or With Suspicion, it may be necessary, as deemed by the company, to move directly to a laboratory confirmation method without a screening test being performed. The method of confirmation is open and at the discretion of the company.”

Alcohol Screening.

“For information, the England and Wales drink drive law has one level but measured in three different mediums, either, 35 micrograms of alcohol per 100 millilitres of breath (35µg/100ml Breath Alcohol Content or “BrAC”) or 80 milligrams of alcohol per 100 millilitres of blood (80mg/100ml Blood Alcohol Content “BAC”), or 107 milligrams of alcohol per 100 millilitres of urine (107mg/100ml Urine Alcohol Content “UAC”). Scotland has reduced levels to 22 µg/100ml BrAC or 50mg/100ml BAC, as per the European continent.”

Please note that a company may have a Zero Tolerance to alcohol, but they can’t physically operate at that zero measurement level. The reason is that the body will produce alcohol following consumption of food and especially after eating fruit. Hence for alcohol policies, zero is considered at BrAC of 9, so 10 or above is considered a reading of alcohol having been consumed.

Alcohol tolerance must be clearly defined. The level is best chosen from one of three levels due to the availability of test devices and the comprehension of the levels by the employees. Note: It is up to the company to decide which alcohol tolerance level will be implemented.

“The company defines the consumption of alcohol as being at or in excess of one of or each of these levels:-

10 µg/100ml BrAC, this is zero, or

22 µg/100ml BrAC, the Scotland and EU drink drive level, or

35 µg/100ml BrAC, the England and Wales drink drive level.”

Some companies allow a breath alcohol sample to be above the company policy level, but below the legal drink drive level, and the employee is given a written warning and sent home without pay for a day. Repeat offences above company policy level may lead to dismissal.

If the alcohol level is above the legal level and the employee drove or intended to drive, this can be considered gross misconduct leading to a disciplinary hearing and likely dismissal.

“All screening and testing will be performed in a confidential and discrete manor to respect employee confidentiality. Alcohol testing will be with the in calibration breathalyser, performed by a trained screener (following attached operator instructions) and any positive results from the first screening test will be confirmed by the taking a further sample for examination at 20 minutes, as per breathalyser instructions.”

Alcohol will be screened for with a professional police quality specification breath alcohol device. The screening will be performed by a suitably trained member of staff with a company owned and calibrated instrument (following attached operator instructions) or by an external contractor called in to take the samples using their calibrated breathalyser.

Taking the first reading shows the presence of the alcohol, but not if the level is falling or even if the level is rising. If the employee has just drunk the alcohol some minutes ago, the level will rise after the first reading. Alcohol levels maximise in the blood at 20 minutes following consumption, hence the second test at 20 minutes, not sooner nor later!.

“If the first alcohol screen shows positive at any level, a second reading will be taken after a 20 minute interval.”

“The reading from the second sample at 20 minutes is taken as the reading for comparison with the company policy level.”

“Exceeding the company level will initiate a disciplinary process. The company reserves the right to request a sample of urine or blood for laboratory confirmation. Refusal to participate in or attempt to delay or pervert any part of the alcohol screening process is considered gross misconduct and may result in disciplinary meeting and dismissal.”

Consequences.

The company also needs to detail the consequences of testing positive in both the drug and alcohol policy. “Testing positive at the confirmation stage will be dealt with through a formal hearing as per the company disciplinary procedures, if upheld, the outcome will be (anything from) immediate dismissal (through second chance but closely monitored by further testing, or to a rehabilitation course with counselling and further intense screening). The decision not to terminate employment will be that of the Managing Director.”

Finally, state “This policy and its terms will be reviewed on a regular basis and modified as required or following any changes in legislation.”

To close off the policy document, it may be considered necessary to have every employee acknowledge receipt of their copy with a new signature. “I, having had time to consider and consult with the company and/or external advisors, fully understand, consent and agree to the terms and conditions of the (new or additional) company drug and alcohol policy,

Employee signed and date………..

Employer signed and date………...”

Policy Introduction.

It is generally accepted that a new policy can be introduced with 90 days’ notice, or shorter if by agreement or if detailed in the original employment contract. Unions or the Works Council if over 25 employees, may question the necessity for the policy but will also realise the change in society and the fact that alcohol and drugs are a problem in society and therefore also within the workplace, subsequently increasing unacceptably, the potential risk of injury or death. D.Tec’s experience over the past 20 years is that Unions will work constructively with the company to implement these changes to improve the safety of the innocent majority of employees.

FAQ’s

The first question raised is usually the European Court and testing being against the employees human rights.

European Court of Human Rights have their own Case Law that covers completely that employees may have a right to a private life, but not if their actions have the potential to endanger others and so the Health and Safety Laws of a member country take precedence. So in the UK that is the Health and Safety at Work Act and the Corporate Manslaughter Act which override any discussion of Human Rights and the European Courts.

Policy review.

If you have taken the D.Tec International Ltd. “starter package” which includes this Drug and Alcohol Policy advice and construction document, and you have made decisions based on your own company ethos, and chosen your terminology and created your draft policy, you can now email it to sales@ and ask for the review by the Dtec Managing Director.

Terms and Conditions of Employment briefing.

Consider that in your Terms and Conditions of Employment, you may wish to restate the company zero tolerance stance and refer to, or repeat the company policy section on drugs and alcohol. This may be a good time to implement random or fixed security checks on the person and their bags. Theft from the company is a simple way of funding the purchase of drugs.

Company Health and Safety Policy briefing.

Consider that in your Health and Safety Policy, you may wish to restate the company zero tolerance stance and refer to, or repeat the company policy section on drugs and alcohol. This is a good time to remind employees that Health and Safety is not just the responsibility of the company, but also the responsibility of every employee. They have a clearly defined legal duty of care towards their fellow employees and what many forget, a duty of care to themselves.

What not to do!

Doing nothing is no longer an option.

The Corporate Manslaughter and Corporate Homicide Act 2007 effectively states that in the event of an accident, the controlling person or persons will be prosecuted. This means not prosecuted in their executive or title role of the company where the company pays the fine, but personally! That means the possibility of personal imprisonment and/or a severe financial penalty. You selling your house to pay the fine while you go to jail. The prosecution does not require proof of culpability, just to show that systems were not in place or systems that were in place were not enough or not operated correctly or sufficiently.

So this means you must have a policy and you must be able to prove you were using it… that means been seen to be testing!

Do not assume the unions and staff are against drug testing.

When implementing a drug and alcohol policy, involve the unions and staff from the outset and let them know the method will be the most none intimate screen followed up by a gold standard laboratory confirmation process. Explain that DrugWipe Dual and the Dtec system have been in place across the UK since 1999 and many of their colleagues in their particular union at other companies will have already seen the benefits and security of the system. The “We Detect to Protect” line is exactly that, it is to make the work place safer for the innocent majority of employees from the irresponsible minority. The union or employee representatives see increasing the employee safety in the work place as one of their fundamental aims as opposed to protecting the miscreant few.

Do not get over confident and assume some one is a drug user.

There may be may other reasons for poor performance or out of character behaviour. Screening for drugs is only one possibility, but by sticking to the drug and alcohol process which is fair and sound, the employee and the company are both safe and secure.

Do not assume you know more than the younger generations.

They have grown up with drugs, they usually do know more about drugs but they also mistakenly believe they know ways around testing methods. The solution for any screener or manager is simple. Stick rigidly to the complete policy and procedures as laid out. The policy will deter a significant number of users, catch the majority of drug users already within the company and also most importantly, make the company safer and protect the company and the managers personally in the event of arbitration or a court of law.

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