It\u2019s a scenario any employer could imagine. A trusted employee \u2013 let\u2019s call her Ellie \u2013\u00a0 has been absent with a slipped disc but is now back at work. She\u2019s still in some discomfort, but she\u2019s taking codeine tablets prescribed by her doctor to control the pain, and seems to have returned to her usual reliable self.\r\n\r\nAs an employee, would you question Ellie\u2019s fitness to work? The disturbing fact is that many bosses wouldn\u2019t \u2013 yet by failing to implement a\u00a0drugs\u00a0and alcohol policy which includes testing for prescription and some over-the-counterdrugs, they could be laying themselves open to prosecution, not to mention risking the safety of employees and customers.\r\n\r\nIf Ellie was a driver or a machine operator, the dangers are clear. Codeine is an addictive opiate-based substance which can cause drowsiness, even when taken at the recommended dosage.\r\n\r\nUnder government rules which came into force in 2015, it\u2019s an offence to drive with legal\u00a0drugs\u00a0such as codeine in your body if those\u00a0drugs\u00a0impair your driving, whether they are prescription\u00a0drugs\u00a0or certain over-the-counter medicines. But it\u2019s not just Ellie who could be liable for prosecution if she was found to be unfit to drive. Her employer could be scrutinised for breaching health and safety legislation, leading to fines or even a jail sentence for failing to take all reasonable steps to ensure staff members are fit to work.\r\nDrugs\u00a0and alcohol testing \u2013 what\u2019s the law?\r\nDrugs\u00a0and alcohol testing is subject to legislation in certain transport sectors, such as the aviation, rail and shipping industries. Although there is no legal obligation for most other employers to adopt a specific testing policy, they do have a duty of care to maintain a safe working environment under the provisions of the Health and Safety at Work Act. If methods for detecting misuse are not implemented and an accident occurs, it\u2019s clear that employers could be held liable. The risks are present in almost any working environment, however there are obvious ramifications for companies that employ commercial drivers or machine operators.\r\nWhat\u00a0drugs\u00a0should employers test for?\r\nIt\u2019s no surprise that illegal substances such as cannabis, cocaine, ecstasy and ketamine should be included in any testing regime. Alcohol should also be tested for. But the implication of the 2015 UK drug-driving law is that other \u2018everyday\u2019\u00a0drugs\u00a0which many think of as innocuous should also be considered. Legal\u00a0drugs\u00a0cited in the 2015 law include:\r\n\r\n \tAntihistamines such as chlorphenamine, diphenhydramine, loratidine or cetirizine\r\n \tDiazepam\r\n \tMorphine or opiate and opioid-based\u00a0drugs\u00a0such as codeine, tramadol or fentanyl\r\n \tTermazepam\r\n\r\nAs previously discussed, there is no law that states employers must test for these substances, whether or not their staff are driving or operating machinery as part of their role. But employers ignore the dangers at their peril. Along with prosecution and the immeasurable emotional impact of an accident, the damage to a company\u2019s reputation if an incident occurs can be immense.\r\n\r\nAnd it\u2019s worth noting that there doesn\u2019t have to be an accident for legal drug-taking to impact negatively in the workplace \u2013 drowsiness and other side effects can lead to lower productivity, costly mistakes and absenteeism.\r\n\r\nA study in the US this year revealed that 71 percent of employers have been affected in some way by employees\u2019 misuse of legally prescribed medications, including opioids1 (How the Prescription Drug Crisis is Impacting American Employers. National Safety Council, 2017).\u00a0Yet the survey of 501 HR decision-makers found that 41 percent of those that drug test employees are not testing for synthetic opioids.\r\nSetting up a drug and alcohol testing policy\r\nWhile many larger corporations have policies in place, smaller businesses may feel daunted by the sensitive task of setting up a screening procedure. However the process can be relatively simple and not as expensive as many imagine.\r\n\r\nTechnological advances have transformed the quality and accuracy of testing hardware, and high-quality police-grade testing kits can now be bought at a reasonable price, offering instant and reliable results. It\u2019s important that personnel are trained in the correct use of the kits and accurate interpretation of results, ensuring that any evidence provided is irrefutable if ever challenged in a legal action.\r\n\r\nYou may be wondering how employees react to the news that they are to be tested, whether that\u2019s on a random or regular basis. In our experience, the vast majority of staff actually welcome the introduction of alcohol and drug testing, recognising that it\u2019s in the interest of all employees and the company\u2019s wider customer base. Many will be surprised to learn of the possible side-effects of common\u00a0drugs\u00a0like anti-histamine or codeine, but again they understand the importance of securing a healthy and safe working environment for all.\r\n\r\nOver the last decade, huge progress has been made in terms of tackling illegal drug use and alcohol abuse in the workplace. Now it\u2019s time for employers to direct their attention towards the problems caused by legal\u00a0drugs\u00a0\u2013 problems which may be lesser known, but can have equally catastrophic effects.