However, as regards the existing or present employees, we advised that the employer cannot adopt a policy or rule requiring compulsory or mandatory drug testing whether periodic, or at random, unless their employees would voluntarily submit themselves to such drug test. We opined then that there is no law, jurisprudence, or regulation, which sanctions such management action. Furthermore, the issue on mandatory drug testing whether periodic or at random, on existing employees has far reaching constitutional and legal implications since the employer has to contend with certain constitutional as well as statutory rights of the individuals. As basis we cited then some Department of Justice (DOJ) opinions, which dealt with the issue. In DOJ Opinion No. 29, S. of 1996, the agency opined that mandatory drug testing in schools, which would require all students, both in the public and private schools, to undergo annual drug test, would, absent any express power by law, violate the constitutional rights of the individual, particularly the right pertaining to his liberty as a human person. It would however, not violate the constitution if the drug testing was done on a purely voluntary basis.
In a subsequent DOJ Opinion No. 61, S. 1998, the DOJ, in reply to the query posed by the Civil Service Commission on the validity of CSC Resolution No. 97-4683, dated Dec. 18, 1997 adopting a policy on pre-employment physical, mental and medical examination which include a drug test for applicants for employment in the government, opined that the pre-employment drug testing requirement of the CSC was valid because the State had the right to see to it that only qualified, fit and responsive individuals are accepted. It stressed that a pre-employment testing is a recruitment policy — a management prerogative–which an employer could legally impose. Furthermore, it is still voluntary on the part of the individual for if he/she does not wish to be subjected to a test, he/she need not apply for the job and that the right to work is not violated because such right depends first on an individual’s fitness for the job.
The DOJ opinions therefore emphasized on the voluntary feature of drug-testing which would make it legally feasible. Though the factual backdrop of the queries posed before the DOJ pertained to the government sector employees, these opinions may have great significance when applied by analogy to employees in the private sector in the absence of law, or policy guidelines from the labor department. In sum, we opined then that if compulsory or mandatory drug testing is imposed as a condition for the continued employment of a worker, this may infringe on his constitutionally guaranteed right to privacy and the right against self-incrimination. By this opinion, we do not however mean that an employer is prohibited by law to incorporate in its rules of discipline, lawful and reasonable provisions on drug-related offenses that would serve as basis, or ground for disciplinary action. We then believed that as an employer, it can for example, codify, adopt and enforce certain specific provisions in its code of discipline, which will attain the same objective. We said that the employer must not be totally helpless in the enforcement of discipline against possible "drug users, or abusers" in the workplace, especially if their work, job or assignment would require that they should be free from prohibited "drug use or substance." We qualified, however, that this suggested rule must only be enforced in case there is probable cause that the employee is using prohibited drugs. We further explained that this will be in line with the government’s campaign to minimize if not eradicate the growing drug menace in the country. It is also understood, we said, that the employer will shoulder the cost of the drug test in case it would require an employee to submit a drug clearance.
In addition to the foregoing suggestion, we also opined that the employer can adopt and incorporate provisions in its code of discipline which may merit the penalty of dismissal in case of for example, an employee is caught under the influence of prohibited drug while within company premises, whether on duty or off-duty, using prohibited drug while within company premises, whether on duty or off-duty; or whether outside while in the performance of work; possession of prohibited drugs while within company premises whether on duty, or off-duty etc. We stated that these provisions are lawful and reasonable, and as long as the employer complies with due process, it can validly enforce the same against the erring employees and impose the appropriate penalty thereon including termination of employment. We explained that the existence of these provisions may also encourage the employees to agree to voluntary drug testing as they would be made aware of the employer’s policy to maintain a "drug free" working environment.
However, we also qualified that if an employee is found to be positive of drug use or abuse, the employer cannot, however, utilize the result thereof as sole basis for termination of employment although it may regard this result as a negative factor for the continued employment of the said employee. After all, being positive of drug use or abuse is not a criminal offense under the Penal laws, and what was penalized then is the use, or possession of prohibited drugs. At most, we said that the employer can utilize this positive result in the determination of the work assignment of the said employee, or as basis to direct him to submit for rehabilitation, or, as basis to direct him to take a leave of absence until he has shown proof that he is already free from drug dependency applying by analogy the provision of the Labor Code on termination of employment on the ground of disease. (To be continued)