Privacy protection - Drug testing - Alisivu
Under certain conditions, the employer has the right to process the drug test results of a job applicant or an employee already in an employment relationship. The employer may only handle and register information on drug use contained in the drug test certificate, and even then, only with the employee’s consent. The employer is liable for the costs of the test.
Provisions on drug testing are included in the Act on the Protection of Privacy in Working Life. The general preconditions for testing are as follows:
- The employer requiring the testing must have a written substance abuse prevention plan in place as referred to in the Occupational Health Care Act, and
- Duties that justify the handling of a drug test certificate must be discussed in co-operation procedures.
The employer must share the information that the duties require a drug test with a job applicant before signing the employment contract and an existing employee before changing the terms of employment.
Requesting a test certificate when seeking new job duties
The employer’s right to handle information related to drug testing only applies to a person selected for a job. This means that the employer has no right to require a drug test certificate from a person applying for a job or attending an interview. A job applicant or an employee seeking a new position may only be asked to provide a drug test certificate when the job in question requires precision, reliability, independent judgement or good ability to react. In addition, one of the following preconditions must be fulfilled:
- the performance of duties while under the influence of drugs or while addicted to drugs could endanger
- the life, health or occupational safety of the employee or other persons
- national defence or state security
- traffic safety
- the environment (increase the risk of significant environmental damage)
- the data protection of confidential information
- business and professional secrets
- the employee is to carry out tasks
- in which special trust is required, which will be carried out elsewhere than in premises supervised by the employer, and in which the performance of duties while under the influence of drugs or while addicted to drugs may cause significant financial loss or danger to a customer (e.g. home care service)
- which involve independent work among minors
- in which there is independent and uncontrolled access to drugs or pharmaceuticals usable for intoxicating purposes.
The employer cannot force a job applicant to take a drug test. Thus, a job applicant or employee may refuse to take a drug test, but in that case the employer need not take the application into account or consider the employee for appointment to the new job duties in question.
Requesting a drug test certificate during an employment relationship
First of all, the employer may require the employee to take a drug test during the employment relationship only if the employer has justifiable cause to suspect that the employee is under the influence of drugs at work or has a drug addiction, and testing is necessary to establish the employee’s work ability or functional capacity. Secondly, the employee performs work duties that require special precision, reliability, independent judgement and good ability to react.
Thirdly, the performance of duties while under the influence of drugs or while addicted to drugs:
- seriously endangers the life, health or occupational safety of the employee or other persons
- seriously endangers national defence or state security
- seriously endangers traffic safety
- may considerably increase the risk of significant environmental damage
- seriously endangers the data protection of confidential information
- endangers business and professional secrecy
- could increase the risk of illegal trading of drugs or other intoxicating substances available to the employee through the work.
The employer may also require a drug test certificate from an employee who has pledged to undergo treatment for drug abuse and agreed to the monitoring of progress of the treatment.
If the employee does not submit a drug test certificate to the employer, this is principally considered negligence of job duties, and as such may (depending on the overall situation) result in a warning, termination with notice or even cancellation of the employment contract without notice.