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CANSFORD LABS
on Apr 10, 2018
For multinational businesses, the issue of workplace substance misuse is particularly hard to handle. Even the best-organised teams can’t micro-manage employees across the globe – especially if staff only work on short-term contracts or operate remotely.
The solution, then, is writing and implementing a clear SAMP (Substance and Alcohol Misuse Policy) that applies to teams across borders. This policy should be supported by a POT (Programme of Testing) that sets out a clear rationale and process for implementing tests in different workplace situations.
There’s one small problem: while the importance of drug and alcohol workplace testing is accepted in most regions, the legal permissions and workplace cultures around testing employees change from country to country.
We’ve put together a guide to workplace testing across the globe below, which outlines which types of drug and alcohol tests are permitted by employers in different regions, and when and what they can test for. We’ve also provided further reading resources for employers writing their SAMP for the first time.
Australia
When can employers test employees?
Employers may test when they have an ‘express obligation’ to do so (i.e. it’s required by their SAMP), or when the employee has consented to being tested. If the employee refuses, an employer may justify their test on health and safety grounds.
These conditions apply to both testing both before and during employment.
Essential reading
Guidelines – Alcohol and Drug Foundation, Australia
Bolivia
When can employers test their employees?
Bolivian law does not limit workplace testing, which can be included in employee contracts and businesses’ individual workplace regulations.
Essential reading
Types of drug-testing programmes in the workplace – United Nations Office on Drugs and Crime
Brazil
When can employers test their employees?
Employers are permitted to test their staff before and during employment on the grounds of accident-prevention, providing tests are non-discriminatory and do not humiliate the donor, who must also be fully informed about the testing procedure itself.
Bulgaria
When can employers test their employees?
Employers may test employees during employment, either if the employee gives their consent or testing is included in their contract of employment or the employer’s SAMP.
Essential reading
Employment and Labour Law, Bulgaria
Canada
When can employers test their employees?
While pre-employment testing is not permitted, employers may test staff in ‘safety-sensitive’ positions, if they have grounds to believe the employee represents a danger to themselves or others.
Essential reading
Drug Testing in the Canadian Workplace
China
When can employers test their employees?
Chinese law does not account for workplace testing.
Cyprus
When can employers test their employees?
Cypriot law does not account for workplace testing.
Essential reading
Finland
When can employers test their employees?
Employees who perform roles that require precision may be tested for drug use, if their employer suspects them of being incapable of performing their role. Pre-employment testing is not permitted.
Essential reading
International Solutions: Four Laws that Regulate Drug Testing in Finland – Pre-employment Directory
France
When can employers test their employees?
Testing is not permitted before the employee signs their contract of employment.
Testing during employment can only be performed by a doctor, when testing is documented in the employer’s regulatory guidelines, and only on staff who pose a possible ‘threat’ to themselves and others in the workplace. Employees may refuse to be tested.
Essential reading
Germany
When can employers test their employees?
Employee testing is only permitted in exceptional circumstances, both before and during employment. Testing is typically justified on grounds of health and safety.
Essential reading
Hong Kong
When can employers test their employees?
Testing can be performed before and during employment, providing the employee has been offered at least a conditional offer of employment. In each case, testing must adhere to the Personal Data Ordinance, which sets guidelines around result secrecy and other issues.
Essential reading
Personal Data (Privacy) Ordinance
Republic of Ireland
When can employers test their employees?
Irish employers are only permitted to test employees in employment in exceptional circumstances, and where the employee’s contract allows for testing.
Essential reading
Intoxicants at Work Information Sheet – Health and Safety Authority
Japan
When can employers test their employees?
Employers may test staff both before and during employment.
Luxembourg
When can employers test their employees?
Pre-employment testing is not permitted by employers, who may only test staff whom they believe pose a danger to themselves or others. In this case, the employer must seek the signed consent of the employee and the test must be performed by a third party.
Essential reading
Mexico
When can employers test their employees?
Pre-employment and employment testing is permitted where an employee is thought to present a danger to themselves and others. Otherwise, the 2017 Employment and Labour Law permits testing for staff in certain occupations – with a special focus on those requiring employees to spend time driving.
Essential reading
Employment and Labour Law – Mexican Government
Russian Federation
When can employers test their employees?
Employee testing is not permitted before or during employment.
Essential reading
Labour Code of the Russian Federation – Russian Government
Singapore
When can employers test their employees?
Testing is permitted before and during employment.
Essential reading
Workplace Drug Testing Health Sciences Authority
Slovenia
When can employers test their employees?
Employers are expected by Slovenian law to remove employees under the influence of drugs or alcohol in the workplace, and may arrange for a test to be performed by a trained third party, with the employee’s consent. However, provision for testing must be included in the employer’s own regulations, as it is not accounted for in Slovenian law.
Pre-employment testing is not regulated by Slovenian law.
Essential reading
Sweden
When can employers test their employees?
Testing is permitted before and during employment, under strict conditions. The justification for the test must be clearly stated, employees must be given advanced warning, and testing should be performed in an organised, union-approved fashion.
Essential reading
The workplace: an arena for alcohol and drug prevention – ALNA
Switzerland
When can employers test their employees?
Testing is permitted before and during employment, provided testing represents a ‘proportional response’ to circumstances.
Essential reading
Taiwan
When can employers test their employees?
While all new employees face a mandatory health check before entering a new role, this does not have to include testing for drugs or alcohol.
These health checks must continue on a regular basis during employment, but employers must gain employee consent before testing for substance use.
Essential reading
Employment and employee benefits in Taiwan: overview – Practical Law
United Arab Emirates
When can employers test their employees?
Testing is permitted both before and during employment, provided that testing is accounted for in the employee’s contract.
Essential reading
Employment & labour law in the UAE – Lexology
United Kingdom
When can employers test their employees?
Both pre-employment and in-employment testing is permitted, but only in circumstances where employees are considered a risk to themselves and others. In either case, donor consent is required, while testing and results-processing must conform to strict governmental data protection guidelines.
Essential reading
Being monitored at work: workers' rights – UK Government
United States of America
When can employers test their employees?
The US Government permits both pre-employment and employment testing for safety-sensitive role, with many public bodies practising random screening of employees. However, limitations on testing by private companies varies from state to state, as outlined in the ACLU (American Civil Liberties Union) document below.
Essential reading
State-by-state workplace drug testing laws
Vietnam
When can employers test their employees?
An employer may only test employees before and during employment where there regulatory documents outline guidelines for such activity.
Essential reading
Employment and employee benefits in Vietnam: overview – Practical Law
For the latest legal guidelines around workplace testing, we recommend bookmarking the Reuters Practical Law guide, here.
The list above must not be considered legal advice, and is offered as a starter guide for employers expanding their team overseas or seeking to introduce substance misuse measures across international teams.
Before writing and implementing your SAMP, it’s essential that employers seek guidance from their legal counsel. Not having a Substance and Alcohol Misuse Policy can be costly – but imposing an illegal one is costlier, still.
Fit your new SAMP to your organisational requirements with our introductory guide, here.
