Drug test as pre-employment requirement

Making a job applicant take a drug test as a pre-employment requirement is an exercise of management prerogative.

What’s the legal basis?

It appears that there is confusion on the legal basis for drug test as a pre-employment requirement. While random drug testing for those who are already employees is clearly provided for in Republic Act No. 9165 (“R.A. 9165”), also known as the Comprehensive Dangerous Drugs Act of 2002, and further strengthened by DOLE Department Order No. 53, Series of 2003 (“DO-53”), also known as the Guidelines for the Implementation of a Drug-Free Workplace Policies and Programs for the Private Sector, there appears to be no exact legal provision when it comes to drug test for job applicants as a pre-employment requirement.

Observe, for random drug testing of those already employed, R.A. 9165 provides:

(d) Officers and employees of public and private offices. – Officers and employees of public and 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. 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 and pertinent provisions of the Civil Service Law…”
Section 36 (d), Article III, R.A. 9165

DOLE DO-53 contains a similar provision:

b) Drug Testing Program for Officers and Employees
i. Employers shall require their officials and employees to undergo a random drug test (as defined in Annex 2) in accordance with the company’s work rules and regulations for purposes of reducing the risk in the workplace. Strict confidentiality shall be observed with regard to screening and the screening results.
Section C (b)(i), DOLE DO-53

However, nothing in both R.A. 9165 and DOLE DO-53 states of drug testing as a pre-employment requirement for a job applicant. Thus, many employers are confused on whether they have the right to require job applicants to undergo a drug test as a pre-employment requirement.

What then is the legal basis, if any?

Management prerogative as the legal basis

For those who have reached a level of mastery in Labor Law after diligent study, the legal basis will surely easily come to mind – management prerogative.

Unknown to many, management prerogative is a legal basis unto and by itself. After all, no less than the Philippine Supreme Court has repeatedly recognized the employer’s bundle of rights notwithstanding the absence of any enabling law nor regulation.

This is due to the fact that management prerogative is an inherent right of an employer to regulate all aspects of employment, according to its own discretion and judgment, all aspects of employment. That means, from pre-employment to post-employment.

Pre-employment

At the pre-employment stage, the employer has every right to dictate what would be the pre-employment requirements of its business. On this note, business judgment rule comes to mind – wherein courts (and regulators should as well) not intervene on the employer’s exercise of its judgment as to what should be and what should not be in its workplace – for obvious reasons: each business is unique in terms of its culture, i.e. how the way they do work and what makes them successful in the things they do.

Thus, it is fairly common to observe that companies often have varying requirements when it comes to pre-employment requirements. While some simple require the basic ones such as the resumé or curriculum vitae (others bio-data), there are those that require certificates from either or both the National Bureau of Investigation (NBI) or the Philippine National Police (PNP), residence certificate from the Barangay, medical certificate showing fit to work, and of course, the subject matter on hand – a negative drug test.

Who shoulders the costs?

The next question that usually comes to mind after learning that the employer may require a drug test as a pre-employment requirement is the question on the costs and expenses. Who should shoulder the fees for getting a drug test?

Some argue that it is the employee since it is similar to procuring the other pre-employment requirements, such as the NBI/PNP certificate and so on. Thus, it is argued that the employee should be shouldering this since he should be ready with this document as it is expected by many employers during the hiring process.

While that argument is reasonable, there is one critical thing that should be noted: a drug test usually is prohibitive in terms of costs (meaning: it can be expensive) – unlike the other pre-employment requirements which can be obtained without breaking the bank, so to speak. Further, while many employers do require a drug test, it remains to be the exception to the general rule which do not require it as a pre-employment requirement.

Thus, while there is no specific law nor regulation identifying who should shoulder the costs for a drug test as a pre-employment requirement, there is a strong and compelling reason that it should be the employer for the foregoing reasons – at least for local employment (it is a different discussion when it comes to overseas employment involving foreign employers).

What if the applicant tests positive?

The laboratory result for the drug test is a medical information and thus should be treated with utmost confidentiality. Depending on the arrangement between the employer and the DOH-accredited laboratory conducting the drug testing, the information should be made available only to properly authorized individuals of the employer and the laboratory, including the job applicant, in compliance with the Data Privacy Act. Otherwise stated, the employer nor the laboratory has no business making such information public to the prejudice of the job applicant.

References

Republic Act No. 9165

DOLE D.O. No. 53, Series of 2003

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