Every employer’s dream is to have a team of efficient and reliable workers: always productive, never late, nor absenting themselves for the smallest of reasons. After all, reliability and consistency are foundations to a good business. In the long run, consistent employees would beat even those who are gifted but are entirely self-entitled and unreliable. Therefore, it would be in the employer’s best interest to employ reliable and healthy employees.
A hindrance to this is by having employees who are into drugs or other illegal substances. Problem areas include loss of productivity, poor decision making skills, tardiness, truancy, not to mention major problems down the road which may include aggressiveness and being a danger to other employees in the workplace.
What can the HR and the employer do when faced with such a situation? Here is a comprehensive employer’s guide to dealing with Substance Abuse.
Substance Abuse: Definition
First, what is substance abuse? The following are definitions taken from the Philippine Dangerous Drugs Board website:
“Drugs are chemicals that affect a person in such a way as to bring about physiological, emotional, or behavioral change.
‘Dangerous drugs’ are those that have high tendency for abuse and dependency, these substances may be organic or synthetic, and pose harm to those who use them.”
Before the applicant is even hired, the employer may already require that the applicant undergo a drug test as a pre-requisite to employment. It must be made part of the letter or the pre-employment contract, which must then be signed by the interested applicant.
DOJ Opinion No. 61, 1998 is instructive on this matter. It held that pre-employment testing is a recruitment policy, and a “management prerogative” which an employer could validly impose under the law. The applicant may refuse to undergo the drug test, and it would be legal for the company to not hire him based on that fact alone.
Take note that this pre-employment drug testing is not mandatory on the part of the employer. Many companies (especially those with a high turnover of employees, such as call centers and the like) actually skip this stage and go straight to hiring. But it is good to know that this option may be resorted to by the company.
During employment, random drug testing is a valid measure by the employer in order to make sure that his company is running smoothly.
“While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling anyone in advance when and who is to be tested.” (SJS v Dangerous Drugs Board, 3 November 2008)
Drug testing consists of two steps:
- Screening test, and
- Confirmatory test.
The screening stage, as defined under the Dangerous Drugs Act, is a “rapid test performed to establish potential positive result”. The second stage or the confirmatory test is “an analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test.” The employee concerned must be informed of the test results whether positive or negative.
Take note that the burden for these drug tests must be paid for by the employer, and not subtracted out of the salary of the employees.
1 year validity for the Drug Test
“A drug test is valid for one year; however, additional drug testing may be required for just cause as in any of the following cases:
- After workplace-related accidents, including near miss;
- Following treatment and rehabilitation to establish fitness for returning to work/resumption of job
- In the light of clinical findings and/or upon recommendation of the assessment team.
Important Notes on Procedure
Authorized Drug Testing Centers only
Drug testing shall only be undertaken with those which are authorized drug testing centers. Terminating an employee based on results from a non-accredited drug testing center may subject the employer to liability.
In the case of Nacague vs. Sulpicio Lines, the employee was found positive for drugs by an unaccredited drug testing center. Sulpicio Lines terminated the employee’s services based on those drug tests.
The court held:
“The lack of accreditation of [the clinic] made its drug test results doubtful. Section 36 of RA 9165 (The Comprehensive Dangerous Drugs Act of 2002) provides that drug tests shall be performed only by any government forensic laboratories or any of the drug testing laboratories accredited and monitored by the Department of Health, to safeguard the quality of test results…. In this case, [the employer] failed to prove that the Clinic was an accredited drug testing center.
As the Labor Arbiter found, the employee’s reinstatement was no longer feasible due to the strained relations between them, and he should instead be granted separation pay.”
The list of accredited centers may be accessed through the OSHC website at www.oshc.dole.gov.ph
The two-step procedure must be followed strictly; one step alone is insufficient
In the case of Plantation Bay Resort vs. Dubrico, the procedural rules were seriously cast into doubt since the results of the 2nd confirmatory test came out first well before the 1st screening test. Since the termination of the employees were based on said results, the employer was held liable for Illegal Dismissal.
“In this case, the confirmatory tests came hours before the drug tests on the same day. To be clear, the confirmatory tests were released earlier than the drug test “casting doubts on the veracity of the confirmatory results. Indeed, how can the presence of shabu be confirmed when the results of the initial screening were not yet out?
[The employer’s] arguments that it should not be made liable thereof… do not persuade. It is the employer’s responsibility to ensure that the tests would be properly administered, the results thereof being the bases in terminating the employees’ services.
In fine, as [the employer] failed to indubitably prove that [the employees] were guilty of drug use in contravention of its drug-free workplace policy amounting to serious misconduct, the employees are deemed to have been illegally dismissed.”
Dealing with a Positive Finding
If the employee is found to be positive under the two-step test, the employer and the HR must now exercise vigilance and take immediate action.
An Employee involved in Drug Use amounts to Serious Misconduct
Drug use affects the work performance of the employee; it likewise makes him a safety risk to the workplace. It is equivalent to serious misconduct, which is one of the just causes for terminating an employee.
Case law provides:
“…It is beyond question therefore 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 v Treasure Island Industrial Corp.)
Refusal of the employee to take Drug test amounts to Gross Insubordination
Refusal to undergo random drug testing may also be considered as Gross Insubordination. The employer may use this as a basis for terminating the services of an employee. After all, requiring a drug test is a valid and reasonable measure under the law, and such is relevant to determine the fitness of the employee in working for the company.
Under the law, the elements of Gross Insubordination are as follows:
(a) employee’s assailed conduct must be willful or intentional;
(b) willfulness characterized by wrongful or perverse attitude;
(c) the order violated must be reasonable, lawful and made known to the employee; and
(d) the order must pertain to the duties which the employee has been engaged to discharge.
Thus, employees may not refuse to comply with the employer’s directive of a drug test otherwise it would be a just cause for termination under the Labor Code.
(As with all cases of termination, the employee cannot just be fired immediately. Do take note that the procedural rules for giving notice to the employee must be complied with.
Mandatory Company Programs and Policies in the Workplace
Often overlooked, the Department of Labor and Employment actually requires that all companies employing ten (10) or more workers must formulate and implement drug abuse prevention and control programs in the workplace.
These programs are well within the responsibilities of the HR team. Mainly on Advocacy, Education and Training, these include:
- Employers shall be responsible for increasing awareness and education of their officers and employees on the adverse effects of dangerous drugs as well as the monitoring of employees susceptible to drug abuse.
- Employers are enjoined to display a billboard or streamer in conspicuous places in the workplace with standard message like “THIS IS A DRUG-FREE WORKPLACE; LET’S KEEP IT THIS WAY!” or such other messages of similar import.
- The employer shall ensure that the workplace policies and programs on the prevention and control of dangerous drugs, including drug testing, shall be disseminated to all officers and employees. The employer shall obtain a written acknowledgement from the employees that the policy has been read and understood by them.
To know more about these guidelines, visit http://www.oshc.dole.gov.ph/71/ or approach your HR department for more details.
Sources and further information:
Serious Misconduct and Insubordination for Termination
Comprehensive Procedures re: Random Drug Testing
Management Prerogative and other policies
Case of Nacague (Authorized Drug Testing Center)