Concept of random drug testing

A random drug test refers to “unannounced schedule of testing with each employee having an equal chance of being selected for testing.”[1]

This is further elaborated in the DOLE sample Drug-Free Workplace Policy and Program. It states therein that officers/employees “may be selected at random for drug testing at any interval determined by the Company.”[2]

However, this does not limit the prerogative of the management to require drug testing on other employees. “The company may ask an officer/employee to submit to a drug test at any time it feels that the employee may be under the influence of drugs, including, but not limited to, the following circumstances: evidence of drugs on or about the employee’s person or in the employee’s vicinity, unusual conduct on the employee’s part that suggests impairment or influence of drugs, negative performance patterns, or excessive and unexplained absenteeism or tardiness.”[3]

Further, the management may require a drug test over an officer/employee involved in a near-miss or work accident “under circumstances that suggest possible use or influence of drugs.”[4]

Near-miss refers to “an incident arising from or in the course of work which could have led to injuries or fatalities of the workers and/or considerable damage to the employer had it not been curtailed.”[5]

Work-accident refers to “unplanned or unexpected occurrence that may or may not result in personal injury, property damage, work stoppage or interference or any combination thereof of which arises out of and in the course of employment.”[6]

Mandatory requirement for pre-employment

Based on the DOLE sample Drug-Free Workplace Policy and Program, mandatory drug testing should be required for pre-employment. As stated in such policy, this is to ensure that “only those qualified shall be screened and recruited to prevent the detrimental effects (e.g. lower productivity; poor decision making; increased accidents; more compensation claims; and reduced team effort) which drug use and abuse may cause in the workplace.”

Basis for drug testing

R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002) requires the employers to have their officers and employees undergo random drug testing in compliance with their workplace rules and regulations. Thus:

(d) Officers and employees of public and private offices. – Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;[7]

As stated in the law, the primary purpose of conducting random drug testing is to reduce the risk in the workplace. Any officer or employee found positive may be the subject of disciplinary action, from suspension to termination.

Privacy and dignity

The random drug testing should be done to protect as much as possible the privacy and dignity of the employee.

“For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employees privacy and dignity. 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. But the more important consideration lies in the fact that the test 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. In addition, the IRR issued by the DOH provides that access to the drug results shall be on the need to know basis; that the drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results. Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.”[8]

The results should be kept strictly confidential as much as possible.

Proper steps for drug testing

As provided in the DOLE sample Drug-Free Workplace Policy and Program, random drug testing requires screen test and confirmatory test. “All drug tests shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of the drug used and the confirmatory test which will confirm a positive screening test. Where the confirmatory test turns positive, the company’s Assessment Team shall evaluate the results and determine the level of care and administrative interventions that can be extended to the concerned employee.”[9]

Consequently, the following are the proper procedure for drug testing:

  1. Require a screen test with an authorized drug testing center.
  2. Have a confirmatory test with an accredited drug testing center if screen testing shows positive.

A screen test is a “rapid test performed to establish potential/presumptive positive result.”[10] On the other hand, a 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.”[11]

The employer is obligated to pay for the costs of the random drug testing,[12] as well as inform the officer/employee of the results whether positive or negative.[13]

1 year validity of a drug test

It should be noted that a drug test is valid for one year. Notwithstanding, the employer may require additional drug testing for just cause as in any of the following cases:

  1. After workplace-related accidents, including near miss;
  2. Following treatment and rehabilitation to establish fitness for returning to work/resumption of job;
  3. In the light of clinical findings and/or upon recommendation of the assessment team.[14]

Drug test only with authorized drug testing centers

R.A. 9165 specifically requires that the random drug testing should only be done with an authorized drug testing center, viz:

SEC. 36. Authorized Drug Testing. Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of test results. The DOH shall take steps in setting the price of the drug test with DOH accredited drug testing centers to further reduce the cost of such drug test. The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x (Emphasis supplied)

Department Order No. 53-03 further provides:

Drug Testing Program for Officers and Employees

Drug testing shall conform with the procedures as prescribed by the Department of Health (DOH) (www.doh.gov.ph). Only drug testing centers accredited by the DOH shall be utilized. A list of accredited centers may be accessed through the OSHC website (www.oshc.dole.gov.ph).

Drug testing shall consist of both the screening test and the confirmatory test; the latter to be carried out should the screening test turn positive. The employee concerned must be informed of the test results whether positive or negative. (Emphasis supplied)

Consequently, the drug testing may be had either with: (a) government forensic laboratories, or (b) drug testing laboratories accredited and monitored by the DOH.

Consequences for Incorrect Procedure

Unauthorized drug testing center

In Nacague v. Sulpicio Lines,[15] an employee who tested positive for a random drug test was dismissed. When he filed his labor complaint, he primarily pointed to the fact that the employer engaged the services of an unauthorized drug testing center. The employer was held liable for illegal dismissal for non-compliance with the requirement that the random drug testing should be done with an authorized drug testing center. Thus:

The law is clear that drug tests shall be performed only by authorized drug testing centers. In this case, Sulpicio Lines failed to prove that S.M. Lazo Clinic is an accredited drug testing center. Sulpicio Lines did not even deny Nacagues allegation that S.M. Lazo Clinic was not accredited. Also, only a screening test was conducted to determine if Nacague was guilty of using illegal drugs. Sulpicio Lines did not confirm the positive result of the screening test with a confirmatory test. Sulpicio Lines failed to indubitably prove that Nacague was guilty of using illegal drugs amounting to serious misconduct and loss of trust and confidence. Sulpicio Lines failed to clearly show that it had a valid and legal cause for terminating Nacagues employment. When the alleged valid cause for the termination of employment is not clearly proven, as in this case, the law considers the matter a case of illegal dismissal. [16]

Results of the screening test must come first before that of the confirmatory test

If the results of confirmatory test come first before that of the initial drug test, this is a violation of the law and may result in a finding of illegal dismissal. The same happened in the case below.

Plantation Bay Resort v. Dubrico
G.R. No. 182216, 04 December 2009

A group of employees filed a labor complaint for illegal dismissal claming that the drug testing conducted was not in compliance with the law – even if they earlier tested positive.

HELD: The employer was liable for illegal dismissal. “The importance of the confirmatory test is underscored in Plantation Bays own Policy and Procedures, in compliance with Republic Act No. 9165, requiring that a confirmatory test must be conducted if an employee is found positive for drugs in the Employees Prior Screening Test, and that both tests must arrive at the same positive result.”

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? Plantation Bays arguments that it should not be made liable thereof and that the doubt arising from the time of the conduct of the drug and confirmatory tests was the result of the big volume of printouts being handled by Martell do not thus lie. It was Plantation Bays 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.”

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References

[1] DOLE D.O. No. 37-03, Series of 2002.

[2] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 3(i).

[3] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 3(iii).

[4] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 3(ii).

[5] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 3(ii).

[6] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 3(ii).

[7] R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002), Sec. 3 (d).

[8] Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. No. 157870, 158633, 161658, 03 November 2008.

[9] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 4.

[10] R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002), Sec. 3 (hh).

[11] Ibid. Sec. 3 (f).

[12] Ibid. Sec. 3 (d).

[13] DOLE Sample Drug-Free Workplace Police and Program. Sec. IIA, 5.

[14] DOLE D.O. No. 53-03, Series of 2003, C (b) (vi).

[15] G.R. No. 172589, 08 August 2010.

[16] Ibid.