New drug driving law: implications for employers
The introduction of a new offence of “drug driving” will have implications for employers as well as employees, particularly where driving is an essential component of the work in question.
On 2 March 2015 Section 5A of the Road Traffic Act 1988 came into force and so there is now a new offence of “driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit" on the statute books.
Employers will be familiar with the offence of drink driving. A motorist will be guilty of this offence if they are found to be driving whilst over the legal alcohol limit; the police do not need to prove that a motorist was unfit to drive as a result of their having consumed alcohol. However prior to 2 March there was no equivalent offence in relation to drugs. The police did need to prove that a motorist was unfit to drive as a result of their having taken drugs, which often proved difficult.
The change in the law reflects the public interest in discouraging the use of certain drugs and abuse of certain others, because even though a motorist might not be physically incapable of driving having consumed certain drugs, it is still extremely dangerous for them to do so.
Blood concentration limits have so far been set for 16 substances and the limit for a further drug, amphetamine, has now been set and will come into force through Regulations.
Police are now provided with saliva swab kits to make a preliminary assessment before a blood test is undertaken.
The drugs involved are divided into two categories; firstly the illegal drugs that one would expect, eg cannabis, ecstasy, heroin, for which the limits represent essentially a zero tolerance approach, and secondly a number of medicinal drugs are also included; notably temazepam, methadone and diazepam. The limits for these are set at a relatively high level though and are only likely to 'catch' drivers who are prescribed a high dosage.
Motorists will have a defence if the drugs have been lawfully prescribed (so by a GP or pharmacist) and they have taken their drugs in accordance with medical directions and the manufacturer’s instructions; accordingly, it is advisable for those affected to carry their prescription and the manufacturer’s documentation with them while driving.
These changes are a good opportunity for employers to review their policies for driving generally to ensure that employees and other staff are well aware of the new law and how they may be affected. Substance misuse policies should now be amended to ensure they refer specifically to both drink-driving and drug-driving convictions and their potential consequences for employment. Company car schemes will need similar provisions where these are operated.
Employers will also need to consider how they manage driving undertaken specifically for work purposes, as the possibility remains that employers could be vicariously liable for damage or injury caused by employees while driving on official business, which would be much harder to defend if they have been convicted of drug driving. As a minimum, employers should ensure that drivers are fully aware of the new offences and the provisions in relation to medicinal substances, including the need to carry documentation with them for certain drugs. Employers may also want to consider having systems in place for drivers to report when a specified drug is prescribed to them, although this would require careful consideration and appropriate data protection procedures to be applied.
It might also be a good opportunity to review any existing drug testing procedures or perhaps, where driving is the main purpose of the job and the circumstances justify it, whether the new law gives impetus for drug testing to be introduced. There are a number of legal restrictions and policy considerations to be complied with when introducing drug testing on staff. It should not be introduced without proper planning and legal advice – please contact us for further information.