Health checks
My client would like to ask his staff, including our temporary workers who are already working on site and any future recruits to take drug and alcohol tests. What should I say to our workers?
Employers cannot test employees or other workers without their consent. If testing is to be carried out during employment then the employer i.e. either you, in the case of temporary workers, or the client in the case of their own staff should include in the contract or in a policy given to the workers at the start of their employment a power to carry out testing provided it is justified. Employees and workers may not be penalised for failing to give their consent unless the testing is lawful and in accordance with the principles and conditions set out in the Data Protection Act 1998 for the collection of sensitive personal data i.e. it is necessary for the protection of health and safety or to prevent discrimination or it is to satisfy other legal obligations of the employer.
Pre-employment screening can be introduced as part of the pre-employment process of checking suitability but care needs to be taken when considering screening to avoid discrimination, particularly disability discrimination where certain conditions such as liver disease may have arisen from alcohol abuse. Alcohol addiction in itself is not a disability under the Equality Act 2010.
Before obtaining information through drug or alcohol testing employers should ensure that the benefits justify any adverse impact, unless the testing is required by law. Ideally employers should carry out an impact assessment. This is the advice contained in the recently published Part 4 of the Information Commissioner’s Employment Practices Data Protection Code relating to information about worker’s health.
The collection of information through testing is unlikely to be justified unless it is for health and safety reasons, while post-incident testing is more likely to be justifiable than random testing. Before embarking on a programme of testing employers should first base any testing on reliable scientific evidence of the effect of particular substances on workers and be sure that it will provide significantly better evidence of impairment than other less intrusive means such as performance evaluation.
The main justifiable reason for testing will be on grounds of health and safety and then testing should be confined to those in safety critical areas. Rarely will an employer be justified if his reason for testing is to detect illegal use of substances. This may exceptionally be the case where illegal use would breach the worker’s contract terms or disciplinary rules and cause serious damage to the employer’s business in terms of its reputation or public confidence.
Employers have a duty to use persons who are competent and suitably qualified in the field of testing both to conduct the tests and interpret the results. Furthermore the testing should be of sufficient reliable quality to support any decisions made as a result. Once testing has been carried out the data must be kept securely and workers should be given access to a duplicate sample to allow them to have it independently analysed and to raise any appeal if there is any dispute over the accuracy of the test.
What should I do when gathering information on workers' health?
The Information Commissioner has published the 4th part of the Employment Practices Data Protection Code dealing with the collection and use of information about workers' health. The Code is intended to help employers comply with the Data Protection Act 1998 and to encourage them to adopt good practice.
Information about a worker’s health is classified as ‘sensitive personal data’ under the Data Protection Act 1998 and is subject to a number of conditions and restrictions on an employer's ability to collect, store and process sensitive personal data on health and disability, racial origin or trade union membership. Health information may include any information contained in health questionnaires, the results of drug and alcohol tests, fitness-to-work assessments and vaccination records.
The new Code gives practical guidance to employers on the circumstances in which they may process this information by complying with at least one of the Act's conditions, which include:
- The processing must be necessary to enable the employer to meet its legal obligations in relation to matters such as health and safety or the prevention of disability discrimination. You should confine the collection of health information to areas of highest risk i.e. consider whether such information can be gathered only from those in safety critical work or where the work takes place in a hazardous environment such as a factory or railway. It will hardly ever be appropriate to ask for a full medical history of a worker who is seeking office work.
- The processing is necessary for medical purposes e.g. for the provision of care or treatment and is carried out by a health professional.
- The worker has given explicit consent to the processing of his/her medical information and such consent must be freely given. For example, you must not make the offer of employment conditional on them completing a medical form or undergoing drug tests unless you can justify it as being necessary to determine fitness to carry out a particular type of work. However such justification is likely to be more appropriate at the recruitment stage than once they are employed.
The Code sets out a number of core principles that should be observed by all employers, among them:
- It will be intrusive, and may be highly intrusive, to obtain information about workers' health. Workers should know what information is being collected about their health and why so this should be explained in detail at the top of a medical form or in a letter. If you are taking specific action, such as asking workers to undergo a form of testing, you should make clear what information you will be supplied with, what use will be made of it, and how long it will be kept for. You should use the least intrusive form of testing to deliver the benefits that it is intended to bring.
- Workers have a legitimate expectation that their employers will respect their privacy with regard to their health information. The information should be stored securely in locked filing cabinets accessible by only one or two relevant individuals or password protected.
- If you wish to collect and hold information on a worker’s health you must be clear about the purpose and satisfied that this is justified by real benefits that will be delivered, such as ensuring the health and safety of the worker and other employees.
One important point made by the Code is the distinction between “sickness or injury” records and “absence” records which may not need to detail any medical or other reason for absence and which therefore will not be subject to the same conditions as “sickness or injury” records. Wherever possible employers should confine themselves to absence recording and keep any medical notes separately and keep this medical information confidential to one or two managers e.g. the HR manager. As far as possible line managers should simply have enough information to establish fitness for work rather than general medical details and the assessment of medical information must be carried out by a health professional.
In any event medical information that is collected, held or used for any purpose, as with any personal data about an identifiable individual, must be relevant, not excessive and kept for no longer than is necessary. REC recommends asking a general open question in most cases about health to ensure that you comply with health and safety obligations and avoid discrimination:
“ In order for us to ensure that all candidates have equal opportunity in the course of the recruitment process and to ensure suitability for any vacancies please indicate any matters which you feel may be relevant to your ability to attend interviews or perform any particular kind of work”.
Health questionnaires and medical testing should only be used in safety critical work or environments and you must clearly state your reasons for gathering such information and explain the use to which it will be put.
Medical information should never be passed on to clients unless first you have the explicit written consent of the worker who has been told of the reason why you need the information and why it is necessary to pass this onto the client. The reasons should be confined to health and safety or the prevention of any possible discrimination on the part of the client employer.
The new Part 4 is now available from the Information Commissioner, as well as the other parts making up the Employment Practices Data Protection Code: 1 - Recruitment and selection; 2 - Employment records; 3 - Monitoring at work.
The complete Code together with a guide for small businesses can be accessed from the Information Commissioner's Office.
How should we handle health assessments?
Under the Working Time Regulations 1998 any worker assigned to night work is entitled to right to regular, free health assessments before being assigned to night work and at regular intervals thereafter. The health assessment must be carried out at no cost to the worker and comply with medical confidentiality (although employers and health assessors are allowed to make statements as to a worker’s fitness for night work). There is also a right to:
- transfer to day work where it is available and night-work related health problems arise; and
- appropriate health and safety protection.
Health and safety protection is already in place under the Health and Safety at Work Act 1974 and The Management of Health and Safety (Protection of Employment) Regulations 1992.
There is also a requirement to carry out a more onerous health assessment or capacities checks on young workers doing night work including consideration of whether the worker has the physical and psychological ability to do the work. Again what constitutes a capacities check will be subject to the common sense approach.
There will be little difference in the way employment businesses deal with temporary workers and the way employees assigned to night work are dealt with under Regulations 6 and 7. In REC’s view however where an employment business wishes to place a worker in a night work assignment and that worker does not complete a satisfactory health assessment questionnaire, the employment business does not have an obligation to pursue the night-work route for that worker but can take the view that the worker in question is not suitable for night work and assign him to day time work only.
The Regulation in question is aimed at situations where employers might require employees to perform night work where they are not fit to do it. In such circumstances the Regulation would prevent such a requirement being imposed on a worker until the necessary checks and assessments had been carried out. If, after the employee failed to complete a satisfactory health assessment questionnaire, and the employer still wished that employee to carry out a night work shift, the employer would need to pay for that employee to be examined by a medical practitioner. Such examination would need to be carried out at the employer’s expense. In the case of temporary workers and employment businesses however, it is not necessarily incumbent on the employment business to pay for medical examinations if the employment business is prepared to put the worker forward for day work only. In most cases, where a temporary worker fills out a health questionnaire unsatisfactorily, the employment business will not wish to put them forward for night work and no further medical examination will be required.
Suggested action in relation to health assessments
REC suggests the following course of action in relation to temporary workers carrying out night work although the same principles will apply to any workers who normally carry out night work:
- Devise a health questionnaire (with the help of a medical practitioner or in accordance with the questionnaires used by your clients or the HSE) which is aimed at assessing a worker’s suitability for night work. Ideally, this questionnaire should be completed by all workers upon registration so that there is immediate and easy reference to the suitability of a particular worker for night work as client demands arise;
- Provided workers’ answers to the questionnaire are positive they will pass the health assessment and can be put forward for night work without the need for a further medical examination. If, however, they give unsatisfactory responses and Members wish to consider them further for night work they will need to have those workers examined by a medical practitioner at the Members’ own expense - it is important that workers incur no expense, including the loss of wages, when attending a health assessment. If Members do not wish to consider a worker for night work on account of a poor health assessment, then they will need to make it clear that they will be searching for suitable day work for them wherever possible.
- In the case of young workers (workers who have reached 15 but not yet attained the age of 18) members will need to carry out capacities checks. A capacities check should involve verifying the particular skills, knowledge and experience needed for the task in hand and determining the suitability of the young worker in terms of his age, experience, skills and qualifications in the light of those requirements.
- Implement a system for updating health assessment questionnaires, say annually or more frequently if necessary (or every six months for workers over 40) for workers who carry out night work assignments on a regular and ongoing basis.
- REC recognises that it is sometimes difficult for members to maintain control over the movements of temporary workers while on assignment and that a worker may agree with the client to change from a day work assignment to a night work assignment without informing the employment business that he is doing so. In order to avoid this happening members should ensure that their clients understand the obligations arising out of the Regulations and the necessity to be informed should there be any change in the temporary worker’s working pattern. In addition it is important in relation to a night work assignment that employment businesses make enquiries of their clients as to the nature of a night work assignment in order to know whether it is one that must be restricted to the 8 hour maximum on account of its hazardous or strenuous nature. A system should be put in place to enable consultants to easily decide whether a night work assignment involves such hazards or strains. Members will then need to inform the client in writing of their findings so that the 8 hour cap on that particular assignment is clear.
In the case of young workers REC Members will need to make specific enquiries of their clients so that they are informed of the knowledge, skills and experience required for a specific assignment and can properly carry out the capacities check.
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