The Health and Safety Authority (the HSA) has published an Information Sheet on the issue of intoxicants at work. It had widely been anticipated that the information would take the form of regulations or even a code of practice, however, for the moment, the detail has come in the form of an Information Sheet. The Information Sheet has no formal legal standing.
The Safety, Health and Welfare at Work Act 2005 (the Act) has provision for regulations to be introduced for the testing for intoxicants. However until such time as the Minister makes regulations under the Act statutory testing provisions will not apply.
In the meantime, the guide provides clarity on some of the issues that have concerned employers and employees. There is no legal requirement on employers to test employees for intoxicants. The guide also reminds employers that they have an obligation to ensure, in so far as reasonably practicable, the health and safety of employees.
Whilst employees do not have to submit to alcohol and intoxicant testing (unless provided for in their contract of employment), they are under a duty not to be under the influence of intoxicants. They are also under a duty to co-operate with their employer to comply with the provisions of health and safety law. Employees who observe intoxication on the part of other employees should report it, if it is felt that the intoxicating employee may present a danger to him/herself, or others.
The HSA is clear in its information sheet that the obligations they refer to arise under health and safety law but also acknowledge the right of the employer to rely on contractual provisions to allow intoxicant testing. Where an employer has provision for testing, it is recommended that this is carried out in accordance with an internationally recognised standard of testing.