Random drug testing in a private workplace under Dangerous Drugs Act of 2002

( Conclusion )

Significantly, through the hard work of our lawmakers, Republic Act No. 9165 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002" was recently enacted. This law states inter alia, that officers and employees of private offices whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. By this, we understand, that an employer can validly incorporate in its existing work rules and regulations the conduct of a random drug testing for its existing employees. And we can say that an unjustified refusal of an employee to submit therein may be a valid ground for disciplinary action.

Quite emphatically, the new law also states that "any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code (Sec. 3 (d)). Article 282 it may be recalled, spells out the just causes for termination of employment. This new provision clearly answers the issue on whether or not being positive for drug use may be used as a ground for disciplinary action. It is now clear that it may be used by the employer to penalize the erring employee with suspension or termination as the case may be. But of course, after observing prior notice and hearing as this involves the employee’s security of tenure.

Now, where can the employer subject its employees to a random drug testing? The law says that authorized drug testing shall be done by any government forensic laboratories, or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the drug test results. In other words, the employer may make an arrangement with these government forensic laboratories or with any of the drug testing laboratories accredited and monitored by the DOH to perform the drug testing for its employees. Under the same law, the DOH is mandated to take steps in setting the price of the drug test with DOH accredited drug testing centers to further reduce the cost of such drug test.

How will the drug testing be conducted? The law says that drug testing shall employ, among others, two (2) testing methods, the SCREENING TEST which will determine the positive result as well as the type of the drug used and the CONFIRMATORY TEST which shall confirm a positive screening test. A screening test is defined as a rapid test performed to establish potential/presumptive positive result (Sec. 3 (hh)); while a confirmatory test is an analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test (Sec. 3)(f)). It must be noted that drug test certificates issued by accredited drug testing centers shall be valid for a one (1) year period from the date of issue which may be used for other purposes.

The law further states that in addition to the penalties in Section 36 (referring to suspension or termination of employment) those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. Section 15 states that a person apprehended or arrested, who is found to be positive for use of any dangerous drug after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense subject to the provisions of Article VIII of the Act. If apprehended using any dangerous drug for a second time, he/she shall suffer the penalty of imprisonment ranging from six (6) months and one (1) day to twelve (12) years and a fine ranging from P50,000 to P200,000: Provided, that this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of the Act, in which case the provisions stated therein shall apply.

Subject to Section 15, any person apprehended or arrested for violating the provisions of the Act shall be subjected to screening laboratory examination or test within twenty four (24) hours if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test, shall be challenged within 15 days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipment with a gas chromotograph/mass spectrometry equipment or some such modern and accepted method, if confirmed the same shall be prima facie evidence that such person has used dangerous drugs which is without prejudice for the prosecution for other violations of the provisions of the Act; Provided, that a positive screening laboratory test must be confirmed for it to be valid in a court of law (Section 38).

A drug dependent or any person who violates Section 15 may, by himself/herself, or through his parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, apply to the Dangerous Drugs Board ("Board") or its duly recognized representative for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the court, which shall order that the applicant be examined for drug dependency. If the examination by a DOH-accredited physician results in the issuance of a certification that the applicant is a drug dependent, he/she shall be ordered by the court to undergo treatment and rehabilitation for a period of not less than six (6) months.

On the other hand, if there is no voluntary submission of the drug dependent to confinement, treatment and rehabilitation, the Board may file a petition with the Regional Trial Court for that person determined and found to be dependent on dangerous drugs, for his confinement, treatment and rehabilitation in any center duly designated or accredited for that purpose (Sec. 6).

Notably, as it has always been emphasized by our government in its efforts to solve the escalating drug menace in the society, the new law has deemed it a policy of the State to promote "drug free workplaces" using a tripartite approach. Thus, with the assistance of the Board, the DOLE shall develop, promote and implement a national drug abuse prevention program in the workplace to be adopted by private companies with ten (10) or more employees. Such program shall include the mandatory drafting and adoption of company policies against drug use in the workplace in close coordination with the DOLE, labor and employer organizations, human resource development managers and other such private sector organizations (Sec. 47). In Section 49 of the same law, all labor unions, federations, associations or organization in cooperation with the respective private sector partners shall include in their collective bargaining, or any similar arrangements, joint continuing programs and information campaigns for the laborers similar to the programs provided under Section 47 of the Act with the end in view of achieving a drug free workplace.

We can therefore hope and pray that with this "Comprehensive Dangerous Drugs Act of 2002," we can now achieve a drug free workplace.

(The author is the Resident Partner of the Cebu Branch of the Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He is also a Professor of Labor Law at the University of San Carlos College of Law, Cebu City. He can be contacted at tel. no. (032) 231-4223; fax no. (032) 231-3614 or e-mailed at [email protected]).

(Editor's Note: This is the conclusion of the article that appeared in the Nov. 5, 2002 issue of this paper.)