Strasbourg, 15 June 2007                                                                           P-PG/Ethics(2006)4rev2

EXPERT COMMITTEE ON

ETHICAL ISSUES AND PROFESSIONAL STANDARDS

by MM. Rodrigues and Lourenço Martins

           

http://www.coe.int/pompidou

1. Following the Meeting on the 13th and 14th October 2005, it was agreed that an inventory would be prepared regarding the different national regulations in Europe, including the problem of professional secrecy in occupational medicine[1].

This document is the result of that inventory.

The current report is based on the information received at the authors’ request[2] by the members of the workgroup on ethics (in the cases, in which the countries were represented in the group) or by the Permanent Correspondents in the Pompidou Group (in the other cases). In most of the cases, the information was received between 09th January and 24th February 2006[3].

2. The answers sent by each country, regarding the tests and the professional secrecy are subdivided and summarized; the legislation, the regulations and the adopted practices, if there are any, are also summarized and are object of a brief comment.

We will finish with a short global vision and some conclusions.

3. National Regulations

3.1. Belgium

3.1.1. Tests

In the elements consulted the specific matter of drug testing in the workplaces was not treated.

The law of 4 August 1996 regarding the well being of the employees at work is a basic law on safety and occupational health. The majority of the administrative rules of this law set up the Code on well being at work and some of these administrative rules are the transposition of European directives into  Belgian law.

In order to detect risks for the employees, all employers should have an internal Labour Prevention and Protection Service. In certain issues (for. ex. medical implications), the employer must appeal to an external Labour Prevention and Protection Service. These external services have the task to assess the risks related to different matters.

For specific risks the King can fix the general prevention principles and to design them in detail for application or for the prevention of such situations (§ 3 of article 3).

The royal decree of 28 May 2003 related to the monitoring of the employees’ health transfers into the Code on well being at work, the majority of the RGPT propositions regarding the employees’ health.

This statute clarified that the decision of the adviser on prevention-occupational medicine, that takes into consideration the category or the activity, must be based on the employee’s aptitude or inaptitude to perform his task, at the moment of the medical examination (art. 3).

The employer is forbidden, both on recruitment and selection, well as during, to make further tests or medical examinations (examples: selection tests on hiring based on further considerations than those on the aptitude for a determined activity or offers of a free check-up) than those foreseen in the decree (art. 14).

The decision to consider someone unfit after a previous health assessment, must be justified by the adviser on prevention-occupational medicine, and the applicant or the employee can demand this justification to be transmitted to his own physician (art. 49).

The decision, to submit the employee to health surveillance or not, depends on the results of a risk analysis, the employer being responsible for the choice. But the adviser on prevention-occupational medicine takes part in this analysis, and this one must be submitted, with prior notice, to the Prevention committee. The employer does not have complete power.

The employee exposed to special risks is categorized with employees submitted to health surveillance for a period established by the adviser on prevention-occupational medicine, who will also establish the most suitable measure for each case.

The employee has the right to be informed of the content of the health surveillance and of all resulting procedures.

The roles of the different intervenient in this health surveillance – adviser on prevention-occupational medicine, Prevention and Protection Committee on the workplace, physician-inspector of medical Inspection, employer and employee – as well as their duties, are well defined.

3.1.2. Professional secrecy

The health dossier states that respect for private life is guaranteed (art. 79, 92), being possible the computerization of that dossier by observing the propositions of the law of 08-12-1992 related to the protection of private life (art. 92). The adviser on prevention-occupational medicine is responsible for data processing and runs the medical surveillance department (art. 93).

Certainly, there are general provisions on professional secrecy.

Comment: We can say, in general, that the Belgian legislation consulted is essentially centred on the employee’s protection and not on the protection of third persons.

In any case, the legislation we had access to, stresses the special risks that the employee can face and has a very important control element, the adviser on prevention-occupational medicine.

Although the elements consulted do not deal with the specific matter of drug testing in the workplace, the existing legal framework can provide adequate presuppositions to carry out drug testing, either in the recruitment phase, or during the employment .[4]

3.2. Croatia

3.2.1. Tests

The possibility of narcotic drug testing in the work place is foreseen in the general labour laws (The Labour Act from 1995 – with the Amendments from1995, 2001, 2003, and 2004) and the Health and Safety at Work (Health and Safety at Work Law, from 1996 – with the Amendment from 2003). There is specific legislation for a flight crew (Air Traffic Law from 1998 – with the Amendment from 2004).

The regulation on the assessment of the Health Ability of the flight crew (from 2001, 2004 and 2005) and the sea and inland ships crew from 2002  also includes propositions on this matter.

Article 26 of the Labour Law compels the employee, when signing the contract, to inform the employer of any disease or condition that may hinder the fulfilment of the obligations reported in the contract , interfere with his work, or endanger the life or health of the people he is in contact with. The same article allows the employer, in the same context, – aiming establishing the Health Ability for performing certain jobs – to send the employee to medical examinations (where narcotic drug testing is included).

Article 64 of the Health and Safety at Work Law forbids the use of alcoholic drugs and other addictive substances before work or possession at the work place. Article 65 also establishes the legal means ( an alcometre or any other convenient device or procedure):if the consumption test is refused, the employer may temporarily suspend the employee (who is under the influence of...or other addictive substances), and appeal to the competent security services if the employee refuses to comply.

The article 93 of the Air Traffic Law establishes the compulsory bond of medical examinations for the assessment of the flight crew Health Ability, the procedures to follow and the conditions to respect in the fulfilment of the mentioned examinations and the article 94 clearly forbids the crews – while performing their job - to be under influence of ...narcotic substances and foresees the possibility of, in the case of reasonable doubt, the flight crew be checked by a doctor authorized by the employer, before the crew start performing professional jobs and while performing these jobs (in a way so it does not interfere with the crew’s work .

Article 5 of the Regulations on the evaluation of Health Ability of the sea and inland ship’s crew foresees a special regime of the preliminary medical examination for this type of profession (on the occasion of the admission in specialized training institutions before the first or new job) and establishes the type of tests that the examination must include (where are included drug tests).

3.2.2. Professional secrecy

Secrecy regarding the collection, processing and delivery of the employee’s personal data is regulated by article 29 of the Labour Law and by the Medical Law from 2003.

According to article 29 of the Labour Law the employee’s personal data can only be collected, processed and delivered to a third person, if that is foreseen in the law or if it is required for the purpose of realising the rights and obligations connected with the employment; in that case, the employer has to define in advance which data will be collected, processed or delivered to the third person and the employer has to indicate the person authorised to perform that task; such person must have the employees’ trust and the data learnt in the course of performing their job has to carefully be kept confidential.

According to article 21 of the Medical Law everything a doctor learns about the patient... relating to his/her health condition, must be kept as a dotor’s secret and can be disclosed only with the patient’s permission, unless stipulated otherwise by another law (a parent or a guardian for minors the family, a guardian or a legal representative in case of mental disability or death)

Comment: The legal texts, synthesized here, show the generality of situations set by the execution of drug testing in the workplace, and what deserves attention is their compliance with the “ethical principles”. The possibility of a specific law –labour law- to prevent the employees to use alcohol and drugs before work, the obligation of the applicant to a job to inform the employer of any disease or condition that may be in conflict with the duties included in the contract, the prerogative of not accepting a new testing of the results, the employer’s right to send the applicant to a job (or the employee) to submit himself/herself to the drug testing without his/her consent; the law’s legitimacy in considering the employee’s refusal in doing the drug tests as a positive result, are issues that deserve to be analysed and clarified.

3.3. Cyprus

There is a law from 1996 on safety and health at work. This law which was amended in 2001, 2002 and 2003  does not contain any mention of drug testing.

3.4. Denmark

3.4.1. Drug Tests

There are no laws on drug testing at work in Denmark. The propositions that allow the execution of the mentioned tests and the processing of the collected data are included in the general labour law and in the law about personal data processing (The Work Environment Law of 1999, the White-Collar Workers Act of 1999 and the Act on Processing of Personal Data of 2000[5])

Chapter 11 of the Work Environment Law authorizes the Labour Minister to promulgate administrative regulations regarding medical examinations of employees in specific sectors whose work is associated with health risks.

Sections 5 and 7 of the White-Collar Workers Act impose white-collar workers to inform their employers of any illness or phisical conditions that may prevent them from working.

The employers right to manage and control work gives him the right to carry out control measures (necessary and proportionate) and regulatory provisions.

Comment: As we do not have the legal texts mentioned above (nor the “employers’ right to manage and control” framework- a concept not frequent in other legislations) is not possible to draw a conclusion about the true meaning of the mentioned propositions. The specification of the “ health risks” as a support for medical examinations and “physical conditions” that bond a job applicant to the duty of information, add precision to the legal text (what is not the case in other legislations).

3.5. Finland

3.5.1. Tests

Finland approved recent legislation that includes this matter - Act on the Protection of Privacy in Working Life (759/2004) – that came into force in 1.10.04 and is applied to all employees, including civil servants and any person in a civil service relationship or comparable service relationship subject to public law.

Recruitment

Drug tests can be performed to applicants of a job, that are presented to the employer in certificate issued by a health care professional and laboratory designated by the employer stating that the employee has been tested for the use of a drug referred to in section 2 of the Narcotics Act and containing a report based on the test stating whether the employee has used drugs for non-medicinal purposes in a manner that has impaired his/her working capacity or functional capacity.

The submission of a drug test certificate during recruitment is only allowed“if the applicant is to do the type of work that requires precision, reliability, independent judgement or quick reactions and if performing the work while under the influence of drugs or while addicted to drugs could: 1) endanger the life, health or occupational safety of the employee or other persons; 2) endanger national defense or state security; 3) endanger traffic safety; 4) increase the risk of significant environmental damage; 5) endanger the protection, usability, integrity and quality of information received while working and thus cause harm or damage to public interests protected by confidentiality provisions or endanger the protection of privacy or the rights of data subjects; or 6) endanger business and professional secrecy or cause more than a minor level of financial loss to the employer or a customer of the employer, provided that this could not be prevented by other means.

The employer also has the right to process information in the event that: 1) the applicant is to carry out tasks in which special trust is required, in which work will be performed elsewhere than in premises supervised by the employer and in which the performance of duties while under the influence of drugs or while addicted to drugs may cause significant financial loss to a customer of the employer or endanger the customer's personal safety; 2) the applicant is to carry out tasks which, on a permanent basis and to a material degree, include raising, teaching, caring for or otherwise looking after a minor, or other work involving personal interaction with a minor, and no other person is involved; or 3) the app1icant is to carry out the type of tasks in which there is independent and uncontrolled access to drugs or a more than minor quantity of medicines that could be used for the purposes of intoxication.

For information processing, namely for the use of electronic means, the employer must get the employee’s consent.

During employment relationship

The employer may require the employee to present a drug test certificate during his/her employment relationship if the employer has justifiable cause to suspect that the employee is under the influence of drugs at work or that the employee has a drug addiction; furthermore, testing must be essential to establish the employee's working or functional capacity and the employee must participate in work that requires special precision, reliability, independent judgement, or quick reactions – enumeration similar to that already described.

The employer may impose on the employee a reasonable deadline within which the certificate must be presented.

If the employee’s duties change, the employer has the right to require a certificate about the use of drugs under employment.

The employer also has the right to process information entered in a drug test certificate if the employee is under treatment against drug abuse.

The employer shall notify the job applicant in connection with the application procedure prior to the signing of an employment contract, or the employee prior to a change in the terms of his/her contract, that the nature of the job is such that the employer intends to process the information entered in a drug test certificate or is such that the employer intends to require the employee to present a drug test certificate according to the law.

The employer pays for the drug test certificates.

There are penal provisions (Section 24) if the employer does not provide a certain type of information or submits the employee to tests contrary to what is laid down in the law.

3.5.2. Professional secrecy

The process information on drug test certificate must obey to confidentiality – Section 6 (1) and 5 (2-4). Furthermore, the information concerning the employee’s state of health must be stored separately from any other personal data.

The rules, to which the health care professional and laboratory, that perform and issue the tests certificates, are not known, but we believe that the health professionals are obliged to professional secrecy –section 6 (3) refers to provisions of section 19 of the Occupational Health Care Act[6].

Comment: Finland, with this law, shows a special concern with the employees’ private life towards their submission, in certain cases, to drug tests when applying for a job or during their employment relationship.

However, it may be useful, to know more about the way the tests are performed and how consent to comply is given. It is also important to clarify how the employee or the applicant may react against an interpretation of the tasks that the employer intends to submit for a drug test certificate, as the concepts mentioned in Sections 7 (1) and (2), 8 (1) of the law under analysis[7] are vague and indefinite.

3.6. France[8]

3. 6. 1./3.6.2. Tests and professional secrecy

The Labour Code forbids alcoholic beverages at work, but there is nothing about the use of narcotic substances.

The employer has an obligation towards health and safety, the employees must also take care of themselves with others, and an internal regulation can determine guidelines in this matter.

There is the possibility for screening tests in cases justified by security motives and in the following conditions: biological test carried out by an occupational doctor or biologist; the employee must be informed by the doctor about the nature and purpose of the test, its consequences on aptitude; the results are under professional secrecy; the doctor only informs the employer about the employee’s aptitude or inaptitude, never about the diagnosis or the cause of inaptitude.

A letter from the Labour Ministry, dated the 9.07.1990, that publishes a note from the High Council for the Prevention of Professional Risks, advises occupational doctors to follow the opinion of the National Consulting Ethics Committee, of the 16.10.89 – hindering the systematic screening, only admitting it when the tasks to perform are very demanding in questions related to safety and behaviour, both at the recruitment and during the employment relationship. The tests rely on article R. 241-52 of theLabourCode.

Regarding alcohol at work, the Supreme Court (Cour de Cassation) admits control devices in the premises if the results can be contested, and taking into account the task trusted to the employee, a state of drunkenness might endanger people and goods, according to the Labour Code, art. 122-35. Since 1973 the same Supreme Court (Court de Cassation) only permits tests in the recruitment phase for certain jobs, if there was a direct and necessary relation with them– in order to defend the values of private life and to prevent discrimination.

A judgement from the CEDH, of the 7.11.2002, in a case of annual drug addiction control, considers that there is no offence to the proportionality of the interference in private life, if justified by the nature of the tasks.

To conclude, the screening practice of psychoactive substances in workplaces is part of a certain number of prevention measures at work. “Meanwhile it must stay within its framework, in order to avoid any deviation».

The opinion of the National Consulting Ethics Committee for the life and health sciences, of the 16th October 1989, above mentioned, says:

“3. The occupational doctor must proceed, within the framework of each workplace, at the contract’s signature, and later on, periodically, to the examination of each employee to verify his/her aptitude to the job he was called to, and if during the accomplishment of his/her task, he/she may put in danger himself/herself or others. When performing this mission, the occupational doctor must find out, if there is the case, if the job applicant or the employee is exposed to such a danger by the abuse of illicit narcotic substances. He can, for that purpose, prescribe all examinations necessary to do the screening of that behaviour, which may cause such a danger.

4. The deontological rules of the occupational medicine, like the principles imposed by the jurisprudence of the Supreme Court and the respect for the individual freedom, exclude the possibility of asking information from an applicant about to sign a contract or to an employee already working; it is not permitted to impose on him/her examinations or tests, besides those that show a direct and necessary connection to the job he/she is applying to, or that he/she is already performing. Therefore, it is juridical and ethically forbidden to carry out examinations or systematic tests when the contract is signed, or any periodic examination, without any distinction of the jobs applied for or occupied by the employees.

5. On the other hand, risks may exist if certain company activities are done under drug influence; these may affect another employee or a third person,. It is normal and desirable that the applicants for such activities and the employees already performing such activities do systematic tests to detect drug use, in such a way that justifies the inaptitude of the applicants or the jobs already occupied. In this situation, and in this situation only, it is justified the use of systematic tests.

Each entity should have a list with this type of activities, established by a public authority after the warning of the employer, of the staff representatives and of the occupational doctor, and, if necessary, by an ethic Committee, within a framework of general directives determined by the High Prevention Council for professional risks.

6. The person concerned must be always warned of the test he is submitted to; it should never be done without his/her knowledge. It would not suffice to mention the general company regulation of a rule foreseeing screening tests.

7. According to the medical profession, principles, and rules of occupational medicine, the results of the screening tests are liable to professional secrecy. The occupational doctor should only make known the aptitude or the partial or total inaptitude of the applicant at the contract signature or of the employee. He must not, in any case, reveal confidential information such as the diagnosis or the inaptitude nature or cause, even to the employer.»

Comment: France does not have specific rules to carry out drug testing at work, however, it performs them in the same way as the alcohol tests.

It is curious, though, that the rules advised by the Labour Ministry are based on a statement of the National Consulting Ethics Committee.

3.7. Germany[9]

3.7.1.    Tests

There is no specific and explicit law on drug tests in Germany. The drug screening in the pre-employment stage and in the work place apply to the general principles and legal provisions on the collection and use of health-related data.

The Federal Data Protection Act (section 4 subsection) requires the subject to be informed about the data to be collected, and, if, after the collection, the data have to be stored, the propositions of that law must be observed.

Recruitment

Under the “right to ask questions” (developed by the Federal Labour Court) the employer has the right to ask the applicant certain kind of questions and collect relevant medical data (as far as he has a reasonable and legitimate interest in the answers because of the employment relationship), including information about any possible drug consumption and drug tests. If the applicant does not object to a medical examination, it implies that he consents to the collection of health-related data including the drug test.

During the employment relationship

In already existing employment relationships, drug testing shall be admissible if the consumption of drugs has been explicitly or implicitly forbidden to the employee. The employer’s legitimacy to forbid drug use is not explicitly foreseen in the law, but is based on the Occupational Safety and Health Act (section 3 and 7) and in case of accidents in the Accident Prevention Regulations by the Occupational Accident Insurance Funds, in the Works Constitution Act (section 87) and –in the understanding of the Federal Labour Court- of the employee '’general duty of loyalty"

There are specific legal propositions to regulate the right or the obligation to collect health-related data in certain areas of the working life (security-sensitive work places: pilots, tube drivers, locomotive drivers, fuel truk drivers, nuclear power inspectors and others). But such propositions do not allow, in any case, a general screening but only a random testing. That means that in general, drug tests shall only be carried out if there is a suspicion or a specific event.

3. 7. 2. Professional secrecy

In case of a positive test result the company doctor has to judge whether the applicant is qualified or not and may inform the employer about the mere result of his judgement[10].

Comment: The Working Group must review all type of relevant questions set by the drug testing in work place. The German situation presents an inventory that meets multiple situations (whose conformity with the ethical principles must be considered) beyond original aspects (“the right to ask questions”, drug testing can only be imposed, when drug use is forbidden by the company regulation) and whose contribution for the clarifying of relevant issues is positive. In such measure, it would be useful to have the mentioned legal texts (available only in German).

3.8. Greece

3.8.1. Tests

In Greece the drug tests – only at the contract signature – are foreseen and regulated in law 2690/1998.

3.8.2. Professional secrecy

The professional secrecy is generally acknowledged in the Penal Code (article 371), in the Code of the medical profession (law 1565/1939) and in the law on medical deontology (law 3418/2005).

Comment: The law only allows drug testing in the recruitment stage. It would be eventually useful to have the mentioned texts (available only in Greek).

3. 9. Ireland[11]

3.9.1 Drug tests

The Safety, Health and Welfare at Work Act of 2005 includes basic dispositions on drug tests of intoxicating substances at work.[12]

According to the mentioned diploma, it is the employee’s obligation, while performing his/her work (section 13, 1) to:

-       take the “reasonable” measures to protect his/her health, safety and well being and the health, safety and wellbeing of third persons, that might be affected by his acts or omissions (section 13);

-       assure that he/she is not under the influence of any intoxicating substance that might harm their own health, safety and wellbeing or of third persons;

-       submit, when reasonably requested by the employer (and under the supervision of competent health professionals) to reasonable and proportionate tests for intoxicants.

It is also the employee’s obligation, when knowing that he/she is suffering of an illness or physical or mental disability that – in the performance of a certain activity – may put him/her or third persons in danger, to inform the employer or the competent health professional (that has to inform the employer), (section 23, 4).

It is the employer’s obligation – while in the performance of his/her activities to protect the employee’s health, safety and wellbeing – to give appropriate information to the employees about the risks at the workplace[13](section 22, 1);

The employer has also the right to demand an employee or a certain type of employee be assessed (by a health professional appointed by him) in their aptitude to perform certain activities; the risk identification must be based on a proper assessment of these same risks (section 23,2-3) [14].

Finally, it must be mentioned that failure to fulfill the generality of the obligations and duties mentioned above, both by the employer and employee, is punished with a fine or penalty.

3.9.2 Professional secrecy

There is no information on this matter (regulated, according to the document given to the EMCDDA working groupe, by the Data Protection Act 1988 and 2003)

Comment: In general the Irish legislation – the most recent we know – explains clearly most of the issues posed by the tests application in the workplace.

The knowledge of the regulation announced for 2006, will allow the enlightenment of certain issues with ethical implications unfinished in this text and, in some cases, already questioned by other analyzed texts (tests before the employee’s hiring, type of activities in which the tests can be asked by the employer, sampling tests/generalized tests, the employee’s duty to inform of his/her disability/illness that may harm the performance of his/her activity). Issues related to terms such as “reasonably required” (section 13,1,c), “reasonable care” (section 13, 1,a) and to the independence of health professionals “appointed by the employer” have clear ethical implications that, in our opinion, must be mentioned in “the opinion of the working group”, in preparation.

3.10. Iceland

3.10.1. Tests

Iceland does not have any regulations regarding the use of drug detection tests in the work place.

3.10.2. Professional secrecy

The professional secrecy in occupational medicine is foreseen and regulated in the Act on the Rights of Patients n. 74/1997.

Article 12 of the mentioned law determines that “a health worker shall fully respect the principle of professional secrecy regarding whatever he comes across in the course of his work regarding the health, condition, diagnosis... as well as other personal information”. The same article explains that professional secrecy continues to apply after the death of the patient or even after the healthcare worker has left his job. The mentioned article still foresees the conditions in which the worker may provide information to third persons (urgent reasons, with due regard to the wishes of the deceased and the interest of those concerned).

Article 13 of the same document determines in what cases and in what conditions the healthcare worker is not bound to keep secrecy (when the law foresees it and when the patient or his/her guardian has consented it).

Comment: The doubt remains if there is or not a “justifiable law” (that gives support to the drug testing practice). If the answer is negative, we might question what kind of assessment should be done of the mentioned practice.

 

3.11. Italy

3.11.1. Tests

Article 125[15] of the DPR n. 309/90 (Italian law on narcotic substances) – foresees that the persons belonging to the class of workers with activities that may endanger the safety and health of others should submit to drug tests at the contract signature and during the employment relationship.

This class of workers must be identified by a decree of the Ministry of Labour and Social Policy and by the Ministry of Health. This decree also determines the drug testing administration timing – its periodic character – and the drug testing administration modalities. The public structures of the National Health Service are qualified to do the tests, even if the costs are born by the employer.

If drug addiction is found out during the employment relationship, the employer must stop the activities that may endanger the safety and the health of others.

If the employer does not follow these provisions, he risks imprisonment or fines.

Since 1990 no decree has ever been published on risk activities.

Currently, there is a regulation proposition on these activities (mainly transport, health and constructing workers) that is being examined by the competent authorities.

The Authority for the protection of personal data (Garante della privacy) has taken an issue on the regulation proposal. It has underlined (official information of the 5th January 2006) that the drug testing for the specific worker categories must be carried out respecting the citizen’s dignity and discretion, above all to avoid discrimination and marginalization. Furthermore, the Authority supports the need of tests, when there is real substance abuse dependence, and not only when there is an abuse, even occasional. Ordinary tests and not sufficiently motivated, should also be avoided. The Authority also mentions the need to be specific in case of accident in the workplace. The obligation to submit to tests must be foreseen, when there are specific accidents that can have origin in drug abuse.

3.11.2. Professional secrecy

The physicians registered in the Medical Association must respect a deontological Code that also foresees a professional judgement. Art 9 of the Code keeps the professional secrecy, art. 79 foresees the doctor’s relation towards the drug addicts’ prevention, treatment and social reintegration.

There is no Medical Code for occupational doctors.

Comment : It would be interesting to have access to the draft regulation which was cited by the Authority for the Protection of Personal Data on 15^th December.

In this Regulation is also indicated the rank of workers that carry out activities that may endanger the safety and the health of third persons, so drug addiction [16] cannot be tolerated.

We are inclined to think that Italy is going to adopt suitable juridical rules on this matter.

3.12. Lithuania

3.12.1 Tests

 (The use of “drug testing” is mentioned in the Code of Administrative Offences of the Republic of Lithuania for the cases of road vehicles drivers, driver of boats and vessels in Lithuanian waters, workers of the commercial aviation and other persons, if there are any suspicions of drug use, they must be suspended from those activities.

There are some companies testing their own workers on their own initiative.

We didn’t receive any elements on professional secrecy

Comment: For a better analysis it would be necessary to know the text of the Code of Administrative Offences and the texts on professional secrecy.

We still believe that Lithuania needs better rules on this matter.

3.13. The Netherlands

3.13.1. Drug Tests

Holland’s information was as follows: “In the Netherlands, drug testing is perceived as an infringement on privacy according to article 10 (privacy) and article 11 (physical integrity) of the Dutch Constitution. Under specific circumstances, employers may invade such Constitutional rights, provided there has been made a statutory exception.

The question if employers can perform drug tests on their employees, depends very much on the specifics of each case. If there is a dispute, it’s settled in court. There have been no appeals in such cases; until now, our highest legal office, the Supreme Court, has not been able to make a general remark about the admissibility of drug testing in the workplace.”

The legislation on Aviation (Aviation Law, 1^st July 1999) includes severe control measures on alcohol, drugs and medication in all persons involved in air traffic, whether on duty or in pre-flight preparation phase. According to the law dispositions “it is forbidden for a crew member to perform any activities under influence of a substance (i.e. medicine, drugs), that inhibits his/her ability to perform his/her duties properly.”

The Aviation Police are using Breathalyser tests are to detect alcohol and (according to the detected alcohol level – when the alcohol level exceeds the level of 90mg/L) the activities can be suspended temporarily and the licence can be cancelled.

We didn’t receive any elements on professional secrecy.

Comment: It would be useful for the working Group to know the exact terms of the Aviation Law and assess, in general, how far the agreed procedures are ethically acceptable. In the case of alcohol is not foreseen a counter proof, in case of positive results.

3.14. Norway

3.14.1 Tests

Drug testing at work is foreseen in the Act of 17 June 2005 Nr. 62 relating to the Working Environment, Working Hours and Employment Protection (Chapter 9), that came into force on the 1^st January 2006.

There is another relevant legislation.

The Act of 17 June 2005 Nr. 62, states that the employer can only demand medical examinations in three circumstances: when pursuant to law or regulation; for positions associated to special risks; when the employer finds it necessary to protect life or health of employees or a third party.

The wish, both of the employer and of the employee (consent) does not provide a sufficient legal basis for drug testing.

Furthermore, the controlling measures must be objectively justified and not be a disproportionate burden for the employee and the employer must discuss them with the elected representative of the employees and provide enough information about the controlling measures.

3.14.2. Professional secrecy

The professional secrecy is regulated in the Act of 2 July Nr. 64 relating to Health Personnel (The health Personnel Act) – Chapter 5.

Health personnel is liable, as a rule (§ 21), to the duty of confidentiality relating to people’s health or medical condition or any other personal information that they get to know in their capacity as health personnel. This duty is not to prevent information from being made known to the person that the information directly relates to, or to others, as long as the person who is entitled to confidentiality gives his/her consent thereto, and there is a distinction regarding the consent between persons over or below 16 years of age.

There are restrictions in the duty of confidentiality (§ 23), namely “if exceptional private or public grounds make it legitimate to pass on the information”.

According to § 28, the Government (Ministry) may stipulate regulations regarding the access of the employer to information regarding the employee’s medical condition; the employer can only accede to that information when it concerns the employee’s fitness for a certain type of work or assignment.

Comment: Only a deeper knowledge of the legal texts[17] could determine whether the ethical principles are respected at legislative level.

Based on the transmitted elements, it looks like “drugs testing” is included in the possibility of doing “medical examinations” (in general), at the employer’s disposal.

3.15. Poland

3.15.1. Tests

This is Poland’s answer: There are no laws, regulations and other official public rules/guidelines regarding drug testing in the work places.

Such tests are not performed in Polish Companies. Those we have reached did not have special regulations concerning the issue.

3.15.2. Professional secrecy

Medical confidentiality is foreseen and regulated in the Medical Code of Ethics, articles 23 to 29 (the last amendments were adopted in 1993 and 1994).

Article 23 stipulates the principle of medical confidentiality of all information, (acquired in the course of his/her professional duties) concerning the patient; article 25 enumerates the circumstances and refers the conditions, in which the physician may disclose information concerning the patient to third persons (when it is foreseen in law, when aims to improve the patient’s treatment, when the patient gives his/her consent, when the maintenance of confidentiality constitutes a threat to the patient’s life or to a third person) and article 28 designates that the physician should ensure that his/her professional assistants respect the patient’s confidentiality.

Comment: Considering the absence of “justifying laws”, as it seems to be the case of Poland, and the existence of drug tests, it would be interesting to know, in the abstract, what kind of assessment should be done of the mentioned practice.

3.16. Portugal

3.16.1. Tests

Portugal has a recent Labour Code (LC) approved by Law nr. 99/2003, of the 27th August, and regulated by Law nr. 35/2004, of the 29th July.

Although there are not specific propositions referring to drug testing in the work place, the law appoints a set of very strict general rules regarding the worker’s health, as a result of constitutional principles – principle of the human dignity, basis and limits of a lawful and democratic State (article 1 of the CPR), the right to personal integrity (article 25) and the right to preserve the intimacy of the private life (article 26), and the right to the protection of personal data and the use of computers (article 35).

The right to preserve the intimacy of the private life mentioned in article 16 of the LC, includes both the access to and the disclosure of aspects regarding the intimate and personal sphere of the parts, namely those related to the family, affective and sexual life, and those related to his/her state of health.

Objectively, the employer cannot ask an applicant for a job or the worker to give information about his/her health or state of pregnancy, unless when specific demands related to the nature of the professional activity justify it and the respective reason is presented in writing; such information is given to the doctor; the job applicant or the worker who has given personal information is entitled to control his/her own files; the files and the computerized accesses used by the employer for the processing of the personal data of the job applicant or of the worker are subject to the legislation related to the protection of personal data (article 17 of the LC).

Article 19 of the LC regulates in general about tests and medical examinations saying that “the employer cannot, for the purpose of admission or continuous employment, demand the job applicant or the worker to complete or present tests or medical examinations of any nature to prove physical or psychic conditions, except when those aim the protection and safety of the worker or third persons, or when particular demands related to the activity justify it, in any case, the worker or the job applicant should be given the respective reason”; on the other hand, “the doctor responsible for the tests and medical examinations can only inform the employer if the worker is fit or not fit to perform the activity, unless the worker gives his/her permission in writing”.

Safety, hygiene, and health in the work place are covered in articles 272 to 280 of that same Code, as well as a description of the employer’s general duties, the employees’ duties, the employer’s duty to give information and consult his/her employees or their elected representatives, about the safety, hygiene, and health measures in the work place.

The State, through the Labour General Inspection, the Directorate-General of Health, and the National Protection Centre against Professional Risks, proceeds to inspections to see if the rules are followed.

Articles 211 to 289 of Law 35/2004, of the 29th July[18], regulate the Labour Code, that is, the Code regime is described in detail. We point out some points:

• The employer must promote medical examinations in order to verify if the employee is physically and psychically fit or not fit to perform the activity, and must also verify the effects and the conditions, in which the activity is made, can have on the employee’s health (article 245);
•  The examinations to be carried out are those of admission, periodic (annual for minors, and every two years for employees above 50 years of age), occasional (whenever there any substantial changes that may have harmful effects on the employee’s health);
• The occupational doctor has the technical responsibility of the health monitoring (article 244);
• The employee has the duty to go to consultations or medical examinations appointed by the occupational doctor (article 255-1, b).
• The employee is entitled to know the results of the medical examinations and of the health monitoring and can demand the revision of those results (article 254 -6);
• The employer pays for the organisation and functioning of the safety, hygiene and health services in the work place (article 261);
• In case of risk for the employee’s safety and health for the safety and health of other employees or third persons can cause a situation of inadequacy, making the maintenance of the employment relationship impossible, (article 406-1, c).

3.16.2. Professional secrecy and confidentiality

The doctor is responsible for the health monitoring, for the organisation and updating of the data records and for the results of the health monitoring of each employee, with the indication of the medical examinations or other complementary examinations already done and with other elements that the doctor considers useful (article 56-2, do RLC). When the enterprise ends its activity, the confidentiality of those records ensured by the ministerial body responsible for the labour area.

The clinical observations regarding the medical examinations are noted in the clinical file, subject to professional secrecy, can only be handed to health authorities and to the doctors of the Labour General Inspection (article 247 of the RLC). On the other hand, the file cannot contain elements involving the professional secrecy (article 255-3 of the RLC).

The employees’ representatives for the safety, hygiene and health in the work place, cannot reveal to the employees or to third persons any information that they were told in the legitimate exercise of their functions, and with the clear mention of the respective confidentiality, duty that must be kept after the end of the commission.

The disclosure of other people’s secrets, known to someone on account of his/her state, job, employment, profession or arts, is punished by a term imprisonment of 1 year or fine until 240 days, also applied to the doctor– article 195 of the Penal Code.

The doctor follows the Deontological Code, which compels him to professional secrecy– articles 67 to 80.

For the clerk the penalty is more serious – article 383 of the same Penal Code.

3.16.3. Some national practices

Several entities and companies were heard – National Ethical Council for Life Sciences, Air Portugal (air navigation), CTT Portugal Post-Office, Portuguese Industrial Association and the two main trade unions (CGTP-IN and the General Workers Union)

Although the legal support is not clear, one of these companies carries out drug detection tests to job applicants and periodic monitoring examinations to the air aviation staff and employees under treatment/recovery of drug addiction. The trade unions, although not having statistic data[19], report that the absence of specific legislative rules, is common practice in the companies, specially in the multinational corporations, to force the employees and the job applicants to do tests for the detection of consumptions. The most frequently followed method has been the prediction of such compulsory tests in internal regulations (or simple service orders), invoking the employer’s executive and disciplinary power to legitimize these practices. These internal regulations very often include the prediction of disciplinary proceedings, with sanctions including discharge (alleged fair discharge) when certain levels of consumption are detected, or there is a refusal to do the tests.

They consider that it is necessary to have a specific normative set to regulate the alcohol and drug detection tests within the framework currently established in the mentioned article 19 of the Labour Code. The issues needing clarification are the following: (1) to define the conditions in which the tests can be carried out, and the method of consent of the concerned person; (2) to define the professions/categories, professional/sectors of activity in which tests are compulsory, both at the admission and periodically; (3) to define the type of the authorized tests, considering the prerequisites for technical quality and reliability; (4) to predict confirmative tests, in case of positive results, particularly when handling with detection tests; (5) to define the tests that can only be carried out in the internal company’s health services or in qualified external services, compelling all the professionals involved to professional secrecy; (6) to ensure the confidentiality of the obtained information, namely, that the results will only be communicated to the responsible occupational doctor or to the employee’s family doctor and that the information will only be given to third persons with the employee’s consent in writing; (7) to guarantee that the positive result will only influence the applicant’s admission when interests of equal value are in cause and never on grounds of arbitrary discrimination; (8) to guarantee the maintenance of the employee’s job while he is under treatment, or to transfer him/her to other functions, in which there are no risks for third persons.

The enterprise’s intervention in the area of treatment and rehabilitation must be based on the principle of the employment protection and the respect for the employees’ personal rights, freedoms and guarantees.

Comment: Although recent, the Portuguese legislation is not sufficiently clear for their users regarding drug testing in the work place, when these are justified, and so, there is a risk of diverse internal regulations in the different companies and even elaborated in discordance with the Constitution of the Republic and the labour laws (too generic in this field).

The trade unions are waiting for the Government to amend legislation on this matter, in order to avoid the abuses that are taking place.

3.17. Slovenia

3.17.1. Tests

There are no specific regulations regarding drug testing at work in Slovenia. The legal ground to carry out such tests is based on certain propositions of the general law relating to Health and Safety (Health and Safety at Work Act), Employment (Employment relationships Act), and Health Care and Security (Health Care and Human Insurance Act (adopted in 1992).

Article 6 related to the Health and Safety at Work Act defines the principles upon which the employer must define and implement measures to keep and reinforce health (of the workers) and article 15 and 22 of the same diploma compel the employer to provide health examinations for employers (to be approved by the minister of health in agreement with the minister of labour).

According to article 9 of the same law, the employee must take care of his own safety and health and that of other persons affected by his acts at work.

Article 5 of the Employment Relationship Act prevents to treat unequally the job seekers or the worker during the employment relationship on the bases of.health or disability.(any direct as well indirect discrimination) and article 33 of the same law determines that the worker must respect and implement the regulations on safety and health at work carefully in order to protect the life and health of himself and others..

The health Care and Health Insurance Act provides health care for...mental diseases, including addictions[20]

We did not receive any elements on professional secrecy.

Comment: For the “originality” of some mentioned propositions – namely those regarding the compliance of the employee to take care of his/her own safety and health and of the safety and health of others affected by his acts at work, those related to the non discrimination based on health disability and that related to the compliance of the employee to respect and implement the regulations on health and safety carefully – and for the practical effects of such propositions, it would be more than justified to have the texts on the respective laws (not available in English or in French).

3.18. Sweden

3.18.1. Tests

This was the answer of Sweden:

“There are several reasons why workplaces should be drug-free environments, including safety, productivity and quality. Many Swedish workplaces have therefore drawn up policies that set out guidelines on how to prevent and treat substance abuse. As often stated in these documents, drug testing can play a part in prevention. Such tests are not currently regulated in Swedish law, but are instead governed by agreements between employer and employee organizations. However, there have been demands in various contexts for statutory regulation of drug testing in the workplace. This was most recently proposed in 2002 in a government report on personal integrity in the workplace (Swedish Official Government Report SOU 2002: 18). An important forum for settling disputes between employee and employer organizations in Sweden is the Labour Court. In recent decades, some cases brought before the court, have been about the right of employers to demand that their employees undergo drug tests.

The case that attracted most attention in public debate was one involving drug tests at a Swedish nuclear power station, on which a verdict was issued in August 1998. The main issue in the case was whether the employer, within the framework of his right to lead and direct the work, was entitled to demand that employees underwent compulsory drug testing. The opponent in the case was a member of the Swedish Electricians Union. The employee organization lost the case on drug testing and the court's verdict was that an individual employee was obliged to undergo those drug tests for which instructions to employees were available. The Swedish Electricians Union took the case before the European Court of Human Rights in Strasbourg in 1998-2004 but was unsuccessful.

There is a legal framework for drug testing in some areas of Swedish society such as the prison and probation system and the police. These areas have relatively detailed regulatory frameworks for how such tests are to be performed, even without the consent of the individual.

Guidelines for voluntary drug testing have been issued by the Swedish National Board of Health and Welfare January 2004 and are primarily aimed at registered healthcare staff, including those in occupational healthcare. The Guidelines state a number of requirements that should be met if a reliable result is to be obtained from a urine test for narcotic drugs.

The most important include the following:

The final test result depends on a number of factors. To ensure a correct result, a whole chain of measures must be built up (known as a "chain of custody"), from the summons to the test, identity checks of those providing samples, the taking of samples, transport and analysis, to the reporting of results, interpretation and action.

Staff training and regular quality checks of the entire (testing) process are also important.

Laboratories that analyze samples for narcotic drugs for control purposes should be accredited by SWEDAC, the Swedish Board for Accreditation and Conformity Assessment”.

3.18.2. Professional Secrecy

“General principle:

“For the Health Care and Medica1 Services, the Dental Care and the Social Services the general principle in Chapter 7, Section I and 4 of the Secrecy Act applies. Secrecy applies to information about an individual's circumstances if it is not clear that the information can be disclosed without causing harm to the individual or to somebody close to him. Regarding the Health Care and Medical Services the information about an individual's health status is mentioned as such a personal circumstance that is covered by the general principle.

The secrecy covers both written and verbal information. For information in public documents within these areas secrecy applies as long as the risk of harm to the individual remains - but at the most for 70 years.

Staff in Health Care and Medical Services who are registered comprises the Secrecy Act. The same rules concern registered staff in occupational medicine”.

Comment: Like in other countries, in Sweden drug testing is not formally regulated, subject to agreements between employer and employee organizations. In specific cases, in the prison and probation system with the police, drug testing can be carried out even without the consent of the individual.

It could be useful to know in detail the Guidelines for voluntary drug testing issued by the Swedish National Board of Health and Welfare January 2004.

3.19. Switzerland

3.19.1.  Tests

There is no specific legislation that foresees and regulates drug detection tests in the workplace.

But, both the Penal Code, the Obligation Code as well as the Labour law regarding industry, trade, workmanship and the federal law that concludes the civil Code, include propositions complying the employer to take measures to protect the employee’s health at work and which aim the protection of personality.

Article 6 of the Labour law (RS 822.11) establishes both the employers’ and employees’ duties in order to protect health (imposing the employer the duty to prevent the employee to be forced to drink alcohol or use other psychotropic substances when performing his/her activities)

.

Article 17c of the Labour law recognizes the employee’s right to have a health examination, when working at night. And article 45 of the same law (RS 822.11) enumerates the type of activities that must be submitted to periodic medical examination.

According to a recent report [21]of the Swiss authority responsible for the data protection, it is possible that the doctor who examines the person may think necessary to do a drug screening test to find out if the worker or the apprentice is fit to perform the activity in question.[22]

Article 2 (RS 822.113) obligates the employer to take all necessary measures to ensure and improve health and to ensure the employees’ physical and psychic health.

Article 70 ss. about the prevention of accidents (RS 832.30) foresees that the National Insurance Fund can, in case of accident, submit part of the company or an employee to prevention prescriptions in the area of occupational medicine.

Article 328 of the law completing the civil Code, includes protection measures of the employee’s personality (complying the employer, namely, to avoid sexual harassment and to keep the morality).

3.19.2. Professional secrecy

The collection and processing of personal data is, in general, object of a careful regulation in the Penal Code and in the Contract Laws.

Article 4 of the Penal Code (RS 235.1) establishes the general principles that must be respected in the collection of personal data and article 15 of the Contract Laws stipulates the individual right to rectify the data, to proceed to their destruction or to prevent them to be communicated to third persons.

Article 328 b of the contract laws determines that when processing personal data the employer cannot process the data regarding the employee unless they are related to the employee’s fitness to do his/her job or if they are necessary to sign the working contract.

No. 5 of article 45 of the Labour Code (RS 822.11) foresees that when the employee is declared fit to certain activities,the occupational doctor is no longer complied with the professional secrecy towards the employer and when the measures taken in the company demand it and when the employee gives his/her consent.

Article 321 of the obligation code establishes sanctions for the violation of the professional secrecy by the doctors.

(It was also implied that other propositions regarding the treatment and communication of data related to people’s health exist (article 11, al.1 of the deontological Code of the FMH, and article 4, al. 2 and 3 of the federal law on data protection -LPD, RS 235.1; we don’t have the text, but the reference remains).

Comment: The two issues under analysis in the Swiss legislation are treated in so many contexts, that we think, this legislation deserves a more careful and profound reading.

3.20. United Kingdom

3.20.1.Tests

There is no direct legislation on drugs testing at work in UK. Provisions in Health and Safety, Employment, Human Rights (Human Rights Act, 1998), and Railways Transportation (railways and Passenger Safety Act, 2003 [23]) are the legal support for the practise of the drug tests (althougt there are important issues regarding the interpretation of the provisions).

The general principles based on the legislation mentioned above establish:

-          that people are entitled to a private life;

-          that employers are required to look to the safety on the public;

-          that people are entitled  to dignity;

-          that people are entitled  to proper quality standards for evidence used against them in court or disciplinary proceedings.

The Information Commissioner has recently published part 4 of Employment Practices data Protection Code which states that “the collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons” and recommends that employers should “confine testing to those workers whose activities actually have a significant impact on the health and safety of others”.

3.20.2. Professional secrecy

The Employment Practices Dta Protection Code (Information Commissioner’s Office, 2005) provides guidance on good practice, including compliance with the requirements of the Data Protection Act, 1998, and states, in particular, that:

-          “Wherever practicable only suitable qualified health professionals have access to medical details of employes... Managers should not have access to more information about a worker’s health than is necessary for them to carry out their management responsabilities. As far as possible the information should be confined to that necessary to establish fitness to work. Safety representatives should be provided with anonymised information unless any worker concerned have consented to the provision of information in a identifiable form” (Paragraph 4.1.4.);

-          “Unless told otherwise workers are entitled to assume that information they give to a doctor, nurse, or other professional will be treated in confidence and not passed to others” (Paragraph 4.2.1.)

Comment .The UK legislation is very usefull reference in the matter. To go further in our analysis it would be necessary to acced the texts of the laws. The report “Drug testing in the work place (Joseph Rowntree Fondation, York Publishing Services, Ltd, York, 2003)  gives a good overview of the matter and help us further in our work.

4. Final considerations

A first comment has to do with the validity of the collected elements and their interpretation.

Although not dealing with an accurate and exhaustive data collection about the way the 20 European countries mentioned above deal with the issue of testing in the work place, it is possible, thus, to draw some solid signs about the extent of the problem and the type of approach adopted by the several countries.

If the Group intends to base its work upon more complete and reliable information, both on regulation (or in its absence) and on the practices followed, this document must incorporate a more profound study, with the means and resources considered necessary, including the contributions issued made during the discussion[24].

After this statement and within the framework of the Group’s objectives about the ethical and deontological issues, it is fair to draw the following conclusions:

1. The workers’ submission to drug testing at recruitment or during the employment relationship, both in general activities and those specifically demanding specific safety measures, because of the risks for the workers and for other persons, is a common practice in the countries, being in expansion in some of them.
2. The situations detected by drug testing, on admission or during the employment relationship, are essentially three: (i) absence of laws and regulations, therefore drug tests are made without the observance of general juridical rules; (ii) the tests are carried out within the general framework of the “medical and health examinations”, following the mechanisms set out in the legislation regarding labour, employment, safety, health and welfare; (iii) existence of specific legislative rules in some countries – Finland and Norway – more or less described in detail or about to be regulated (Italy).
3. The issues[25] related both to drug testing and to the retention, treatment, communication of data and information resulting from the tests, are mainly these:

3.1.  Labour activities that, due to their nature and the circumstances in which they are performed, may endanger the health or the safety of the workers and of third persons, so that the practice of drug testing on recruitment or during the employment relationship is more than justified; in which way (legal or contractual obligation, or others) and who has the competence to specify such activities;

3.2.   In this ambit, how it is possible to harmonize the employers’ rights and duties with the employees’ rights and duties, protected by the Constitution or by law, and how can the general interests of the community be protected;

3.3.  When concluding that it is legitimate to do drug tests, what presuppositions and conditions must be respected, namely in relation to the consent of the interested party;

3.4.  What kind of tests are allowed, what guarantees are given by the competent authorities that they are going to be carried out with technical quality and reliability;

3.5.  How can data confidentiality be preserved – from the beginning until the end – and how can the duty to secrecy be kept by all the professional involved, doctors and others;

3.6.  What information on the test results are to be transmitted to the employer, the way to transmit it and the consequences to the employee – in terms of employment relationships;

3.7.  In case of a positive result, what are the possibilities to do confirmative tests and how can the final decision for non admission or job exclusion be refuted;

3.8.  If the employee’s job is kept, while this undergoing treatment, or whether he is transfereted to other activities, with no risk for others;

4. Based on the information collected from the texts received, there is a high degree  of convergence regarding professional secrecy of the health professionals, who are usually bound to it, about the data related to drug tests and about the protection of personal data[26];
5. There are other issues that also deserve some thoughts:

5.1.  Legal propositions concerning drug use that establish limitations possibly “inappropriate” to the employees’ rights, as for instance, the duty of total abstinence;

5.2.  Normative texts or practices with an opposite meaning or with an evident divergence;

5.3.  To carry out drug tests based on distinct laws, if not opposed, or based on imperative rules, on entities’ opinions without a legal bond, or based on simple “voluntary agreements”;

5.4.  Several and serious omissions related to the prediction of this situation or incomplete or vague formulations of certain rules, that may allow substantially different practices;

6.   We recall the ethical principles that may be in jeopardy in this matter.

At the very beginning the principle of individual autonomy, the manipulation of the other, the right of non-interference of the State or of the fellow-citizens, except if higher values are cause for concern and there is no conflict with the human dignity.

It values mainly the respect for private life, which can only be confronted with significant and predominating social interests. In this case the confidentiality of the collected data is a rule and “if the data transmit a possible connection to the practice of criminal offences or others, special precautions must be taken, in order to avoid harmful indirect consequences for the owner of these data “ (Technical Report, Part II).

The principle of welfare must not be forgotten – beyond any doubt, with the use of such an intrusive method, this principle can benefit the community, in terms of the prevention of serious and immediate risks based on certain activities.

The issue of consent, free, enlightened and revoked at any moment, should deserve particular attention, specially from the applicant to a certain job, that has the wish to gather conditions to get the job and sees him(her)self confronted with the disclosure of circumstances or conditions of his/her private life. And also the consequences by refusing consent during employment relationship.

7. There are no doubts about the importance of a clarifying text for the State-members of the Council of Europe, duly justified, that would gather, in an ethical plan, the set of principles, presuppositions and conditions, that would allow to mark out the situations in which drug tests in the workplace are justified and, in the affirmative case, to observe the rules while carrying out the tests, according to those ethical demands.