Is a drug test legal? Can employers run a drug test at work? If yes, what are the things they need to consider? If an employee is found positive, can they be terminated?
A client wrote and said:
"I ran a drug test recently, and 2 employees were found positive. What do I do from here? Are there things that I should consider to make it safe for us?"
I want to share with you the highlights of our discussion. Perhaps, it can help you as well. Let's see what the law has to say about this topic.
Are you allowed to conduct a drug test by law?
Yes, definitely. This is part of regulating or keeping your workplace safe. In fact, if you're employing more than 10 employees, you are actually required to do so by DOLE Department Order 53-03. In addition, since keeping your workplace safe is an aspect of employment, the choice to initiate drug testing definitely falls under management prerogative.
Do I need to announce that I'm doing the test?
No. Please don't. If you announce the test beforehand, actual drug users will be able to cover their results. Read the case of Social Justice Society vs. Dangerous Drugs Board for more information, but in essence, the law says:
“The goal is to discourage drug use by not telling anyone in advance when and who is to be tested.”
But what if they refuse to undergo drug testing?
"What? Employee refuses to comply with a perfectly legitimate order that aims to keep the workplace safe and employees healthy? Outrageous!!!"
Kidding aside, refusal to undergo drug testing at work amounts to willful disobedience. Take note that willful disobedience is a just cause for termination. So here's the irony here: if the employee is afraid to undergo drug testing because they're afraid that they will be fired for using drugs, they can get fired for refusing anyway.
Choosing the right testing provider
Ok, so let's say you've decided to conduct a drug test at work. What are the things to look out for? First off, the clinic conducting the testing should be accredited by the Department of Health. You can find a list of accredited clinics in this list from the DOH, their directory or via a quick Google search.
"Attorney, is this really important? Why can't I just buy the drug test kit and do it myself?" Well, if you want to lose the case, go ahead. But law has noted that the accuracy and credibility of the evidence is important because we're dealing with the livelihood of people who may be terminated. That's why in the case of Nacague vs. Sulpicio Lines, it said:
"... The tests shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody."
If they will be conducting the testing outside their clinic and in your workplace, they need to have a separate accreditation for “PERMIT FOR REMOTE COLLECTION OF DRUG TESTING SPECIMEN” to ensure that your results will not be questioned later on.
Ok, so now you know how to choose the testing providers. You conduct the test... then, one of your employees comes back with positive results. What then?
If found positive, can you terminate?
Let's see what the law has to say. For this, let me quote some cases which I used when we were handling a drug use termination case at the NLRC:
"The charge of drug abuse constitutes serious misconduct, which is one of the just causes for termination. The Supreme Court has declared that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer. (Bughaw vs. Treasure Island Corporation, G.R. No. 173151, 28 March 2008)
Thus, time and again, the Supreme Court has ruled that “the cause of labor should not embarrass the Court from sustaining the employers when they are right” in terminating an employee for a just cause. (Immaculate Concepcion Academy vs. Camilon, G.R. No. 188035, 2 July 2014)"
So there you have it folks. Drug use is a form of serious misconduct according to the Supreme Court itself. And being a form of serious misconduct, the employee may therefore be terminated based on just causes.
Is the positive result enough?
The test you did was called the "screening test". A positive result in that initial test is not enough. What you need to do after that is a "confirmatory test". Yep, you need to run a second test on the same sample to confirm. Why do this? Well, the Supreme Court explains it this way:
"As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results.
Again, we are after certainty here. You are about to fire a person. The least you can do is be certain about the results and the evidence that you provide.
After all the lab results have come in, what now?
After all the results come in, it is time to run the disciplinary process. Make sure that you comply with due process. What due process? Read my other article Every Termination Case should have these 3 Essentials to get the details, but here's a quick rundown:
- Issue a Notice to Explain
- Hold an Administrative Hearing
- Issue a Notice of Termination
That's the disciplinary process that completes the circle.
So what did we learn today?
Here are the important points we should look at today:
- Drug testing is allowed
- You should pick the right drug testing clinic
- One test isn't enough. You should have a confirmatory test afterwards.
- If both tests come back positive, initiate disciplinary procedures afterwards.
That's it for this topic. If you need more assistance with implementing this, you may want to get a legal team assisting you. Now we've simplified the law, go and make better choices.