Drug/substance abuse testing of employees

This table is part of the Global Guide to Employment and Employee Benefits. For a full list of contents visit www.practicallaw.com/employment-guide.

This table sets out whether or not employers can carry out drug/substance abuse testing on employees both before they are employed, and during their employment.

 

Jurisdiction

Can employers carry out drug/substance abuse testing on employees in your jurisdiction?

If yes, can drug/substance abuse testing be carried out:

  • Before the employee is employed?

  • During the course of employment?

Please provide website address links to the governing legislation or "best practice" guidance notes for employers if drug/substance abuse testing can be carried out in your jurisdiction.

Brazil

Yes, for professional drivers.

For other workers, there is no mandatory rule on this matter. Doctrine and the view of the labour courts is that these tests can be carried out if necessary to prevent accidents, as long as:

  • They are done in a non-discriminatory way.

  • The employee is aware of the procedure and it does not expose him to humiliation.

There is no specific rule on this.

http://portal.mte.gov.br/portal-mte/

www.oitbrasil.org.br/

Bulgaria

Employers can adopt and introduce an internal policy in this regard.

Employees are not obliged by law to agree to a drug/substance test, unless this obligation is stipulated in the employer's internal policy or their individual contracts.

N/A

Canada

Yes.

Drug/substance abuse testing cannot be carried out before the employee is employed.

During the course of employment, testing is permitted based on reasonable suspicion for employees in safety sensitive positions.

Random testing is permitted only if the workplace is dangerous and the employer has established that the workplace has problems with substance abuse.

http://www.chrc-ccdp.gc.ca/sites/default/files/padt_pdda_eng.pdf.

China

There is no applicable law in relation to this matter.

N/A

N/A

Cyprus

No.

N/A

N/A

Finland

Under certain conditions, employers can carry out drug abuse testing on employees.

During a recruitment process, testing can be carried out on a selected applicant with his consent only if the type of the work requires precision etc., and influence of drugs could cause danger.

Drug testing can be required during the course of employment if the employer has a justifiable cause to suspect drug abuse.

http://www.finlex.fi/fi/laki/kaannokset/2004/en20040759.pdf).

France

Yes, but only during employment and within the guidelines provided.

Drug/substance abuse testing cannot be carried out before any employment contract is signed.

Drug/substance abuse testing is allowed during employment, provided:

  • It is provided for by the employer's internal rules and regulations.

  • It is restricted to employees for whom the influence of drugs is likely to cause a threat (drivers of vehicles, employees handling hazardous products, and so on).

  • The employee is entitled to challenge the results of the test.

The test must be performed by the occupational doctor, who will only inform the employer of the ability of the employee to perform his duties.

N/A

Germany

Drug/substance abuse testing by an employer is generally prohibited.

However there are exceptions for occupational and operating safety reasons.

Regardless of whether the testing is done before or during the course of employment, drug/substance testing is only possible in exceptional cases, for occupational and operating safety reasons.

Not applicable.

Gibraltar

Yes, with consent from the employee.

The employer can check at any time provided that it has consent from the employee.

It must also ensure that data collected from such testing is dealt with in accordance with data protection law, as information gathered will be deemed to be "sensitive data".

N/A

Hong Kong

Yes, provided that the employer complies with the data protection principles in the Personal Data (Privacy) Ordinance. For example, there is a legitimate business purpose for collecting this data, the means of collection are fair, the data is securely stored and is retained no longer than is necessary.

In each case, yes, save that no testing should be carried out before a conditional offer is made to the selected candidate.

In practice, it is strongly recommended that an employer that intends to carry out drug/substance abuse testing develop and implement a drug/substance abuse testing policy and make that policy accessible to employees.

Not applicable.

India

Yes, if the individual consents to such tests.

Given that it would be carried out with the employee's consent, it could be undertaken under both the scenarios.

N/A

Japan ( www.practicallaw.com/9-637-4003)

Employers can carry out drug/substance abuse testing on employees.

Drug/substance abuse testing can be carried out both before and during employment.

N/A

Luxembourg ( www.practicallaw.com/5-503-2946)

Yes, but only during the employment relationship and under certain conditions.

If an employee is under the influence of drugs or alcohol and is dangerous for the health and safety of the other employees, the employer may, with the express consent of the employee, request that a breathalyzer or psychomotor test is conducted by a third person, or that a urine or blood test is conducted by a labour doctor.

Drug/substance abuse testing can only be carried out during the employment relationship.

The employer may include an additional clause in the employment agreement which allows it to carry out such screening tests, provided that that the consent of the employee is given on the signing of that agreement.

Inspection du Travail et des Mines: www.itm.lu.

Service de santé au Travail Multisectoriel: www.stm.lu.

Mexico ( www.practicallaw.com/3-502-9997)

Yes.

Before and after.

Not applicable.

Myanmar

No laws/regulations on this. According to current practice, an employer may do so through a medical examination.

An employer may do so before and during employment.

None available.

Nigeria

Yes.

Yes. This is usually done before the employee is employed.

www.nigeria-law.org/LabourAct.htm.

Russian Federation ( www.practicallaw.com/5-503-4083)

No.

Not applicable.

Not applicable.

Serbia ( www.practicallaw.com/8-633-9487)

Yes.

There are no legal restrictions on testing an applicant before entering into employment, subject to the applicant's consent.

The employer can refer an employee to an authorised medical institution designated by the employer, at the employer's expense, to determine whether the employee has come to work under the influence of drugs/substances (Labour Law).

Not applicable.

Slovenia

An employer must remove a worker who works, or is present in the workplace, under the influence of alcohol, drugs or other prohibited substances. Legislation does not prescribe the test procedure, and so the examination method must be laid down in the employer's internal procedures, and the examination must be performed by a professionally trained person.

The law does not stipulate whether a candidate can be subject to a drug test.

During the employment relationship, the employer must have the worker's consent only to collect bodily fluids.

Not applicable.

South Africa

Testing is generally prohibited, unless permitted by legislation or for a justifiable reason. Employees must consent to testing.

N/A.

The following websites are useful:

Sweden

Drug tests are sometimes allowed. The Swedish Labour Court accept mandatory controls where there is an objectively justified need and provided that the employees are informed about the test well in advance. The controls should be systematic, conducted in a reliable way and in close co-operation with the union.

Yes

Yes

www.alna.se/in-english

Switzerland

Yes, but only if the function of the employee and the proportionality principle justifies the test.

If the requirements for the test are generally fulfilled, testing can be conducted before and during the course of employment.

N/A.

Taiwan

For some designated industries (such as the military, the police, and so on) which are likely to encounter drugs during work, employers can arrange for regular drug tests. For all other industries, employers must first obtain consent prior to testing.

Health checks must be carried out for all new employees, and the employer must arrange periodic medical examinations during employment, but drug tests are not required as part of these health checks.

N/A.

Thailand ( www.practicallaw.com/8-617-6522)

There is no legal provision empowering an employer to conduct drug/substance abuse testing on employees. Generally, an employer must obtain consent from the employee. The employer can incorporate a clause requiring an employee to take a drug test within the employment contract or the employer's work rules, and agreement to that contract/acknowledgement of those rules would mean that the employee is deemed to have given consent.

From 2000 onwards, the Department of Labour Protection and Welfare of the Ministry of Labour has encouraged business operators, particularly in businesses such as oil and gas or those who operate gas stations, to participate in a programme called "white factory", an anti-drug programme, which would require an employer to check the health of its employees as well as conducting a drug test on its employees.

Drug/substance abuse testing can only be carried out with the employee's consent.

Although the Department of Labour Protection and Welfare has encouraged certain types of businesses to participate in the "white programme", this is not a legal requirement.

There is no specific information on best practice or guidance about drug testing on the Department's website.

Ukraine

Only if the employee consents.

Only if the employee consents during the course of employment.

Not applicable.

UK (England and Wales)

Yes, but only in limited circumstances. For example, where working under the influence of drugs could give rise to health and safety considerations or serious damage to the employer's business.

Employers must also comply with the data protection principles relevant to sensitive personal data.

Before employment: yes, with the applicant's express consent.

During employment: yes, if the use and application of testing is justified, necessary and proportionate. Testing should be done with employee consent (although an employer may make withholding consent a disciplinary matter).

Employers must also comply with the data protection principles relevant to sensitive personal data.

United Arab Emirates

Yes.

Drug/substance abuse testing can be carried out before employment.

It can also be conducted during employment, provided that provisions concerning the testing are contained in the employment contract.

Not applicable.

Vietnam

Yes, if there is a requirement under the internal rules of the employer in place.

Yes, in both cases, if there is a requirement under the internal rules of the employer in place.

Not applicable.

 
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