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Can the food you eat make you test positive for drugs?

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So, you are faced with an employee who swears blind they don’t take drugs, but they have failed a drugs test.  Do you trust your employee over the test results?  Particularly when that employee claims that the positive result was due to their consumption of poppy seed bread rolls. Ludicrous? Apparently not.

A 58-year-old pipe fitter, who was suspended for 11 weeks after testing positive for morphine, claimed that eating the aforementioned items was to blame. Could this possibly be true? Atholl Johnston, Professor of Pharmacology at Queen Mary University, has confirmed that, whilst eating normal amounts of poppy seeds won’t get anyone high, it could result in a positive drug test. 

Most employees will not go as far as this anonymous employee did to prove his innocence by submitting private hair-follicle tests and a letter from his GP and persuading Angela Rippon of BBC’s Rip Off Britain to carry out a televised experiment to test his claim. However, employers are advised to consider alternative types of testing or repeat the test within three days.

It also appears that poppy seeds are not the only foodstuff skewing drug tests.  Both pizza and bread can result in a failed breathalyser test due to the production of alcohol in the fermentation process.  Healthy options can be problematic too. Ripe fruit and fruit drinks can ferment, producing enough alcohol to fail a breathalyser test and it has long been recognised that consumption of hemp in any form (seed, milk or oil) can result in a positive test for one of the principal psychoactive chemicals in cannabis.

So, if you can’t drink gin, can you still drink the tonic water?  Only in moderation - quinine is sometimes used to cut drugs like heroin so having that tonic water with or without the gin could still lead to a urine test result that mirrors those of drug users. Remember - no G or T in the G&T!

Drugs and alcohol have become a more prevalent issue in the workplace and many employers are considering testing employees for misuse, as is their contractual right.  As an employer, your Substance Misuse Policy should provide a clear approach.  You may have concerns about use of alcohol and drugs leading to reduced levels of attendance, reduced efficiency and performance, impaired judgement and decision making and increased health and safety risks. In response, you may have trained line managers to observe employees for related signs of substance misuse such as a deterioration in work performance and/or changes in patterns of behaviour.    

Taking monitoring a step further by introducing drug tests is an extremely sensitive and legally complex issue. It may involve conflicts with human rights legislation and it certainly involves issues under the Data Protection Act 1998 and confidentiality. 

Even with the contractual right to test for drugs, you still need to act reasonably when requesting an employee to take a test.  Not doing so will result in a breach of the implied duty of mutual trust and confidence. This could lead to an employee successfully claiming unfair constructive dismissal. Additionally, obtaining samples without consent could constitute the criminal offences of assault or battery. In the absence of factors indicating that the employee is using, or is affected by, alcohol or drugs at work, you will have to ensure you can justify any testing you wish to conduct.

Once you have the results, you must follow your disciplinary policies and procedures or, at the very least, the Acas Disciplinary procedure, before deciding on whether to take disciplinary action or to treat the employee as if they had an illness. Do not pre-judge the situation and allow the employee to state their case and listen to it.  You may need to take expert advice as to whether the employee’s explanation is feasible - after all, who knew that a poppy seed encrusted roll could result in a positive test for morphine?

If you would like to discuss any of the issues raised in this article, please contact our Employment team on 01733 888888 or email enquiries@buckles-law.co.uk