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The UK Equalities Act of 2010 made questions related to a medical conditions illegal in the candidate selection process.
A pre-employment medical, and/or drug test was viewed to be discriminatory.
An employer, after a job offer is made can ask the soon to be employed candidate to take part in a “pre-placement” medical which can include a drug test. If the candidate is found to have a drug “issue” or medical condition, then there is an expectation for the new employer to make an accommodation. If this is not possible then the job offer may be withdrawn.
The reality is that these candidates are turned down at a later stage of the hiring process. This might be less efficient but prevents discrimination per se by the hiring company.
In the UK there was new statute added to the Road Traffic Act in March 2015. It is now an offence to have a blood concentration above a fixed amount for 17 drugs.
Ireland will be following this statute in 2016. Roadside tests which screen positive will result in blood samples. Impairment is not required or in fact tested.
This new law made roadside drug testing possible and provided employers with a de facto workplace drug testing programme for their employees using company vehicles. Lorry drivers can hardly object to being drug tested when the police are performing the same activity.
Both Ireland and the UK had earlier “impaired driving” legislation where impairment and the presence of “an intoxicating substance” is a serious driving offence. In the UK this is known as a RTA s4.
In law “impairment” and the presence of a drug means that the two acts are linked, therefore the impairment was due to the presence of the intoxicating substance.
A tired driver taking two Co-codomol tablets could be convicted on this basis.
Impairment is determined by the typical field sobriety test, walking, touching the nose etc. or a physician observing small pupils, large pupils, sweating, shaking etc.
The UK in April 2016, followed Ireland in enacting the Psychoactive Substances Act, however, controversially chose not to implement the law.
This act has major impact for EWDTS and workplace drug testing and is covered later, however there remains the underlying issue that elevating or lowering the behaviour of the human central nervous system is a difficult and subjective measurement.
In addition, caffeine, alcohol and nicotine are exempt.
One man’s coffee is another man’s khat.
Questions regarding the questions
If an illicit drug is detected above a certain cut off will the employer take action?
Will this action result in medical treatment and/or dismissal?