The proposal to ban sponsorship of sporting events by alcoholic beverage companies signals that the continuing debate on problems with alcohol and drugs in Ireland is still at the fore. Aside from considerations of how alcohol and drugs affect the social side of life, what about the risks they pose when used in the workplace (or when they have been used socially but their after-effects still pose a risk)? Should the government now review the decision, confirmed by the Health and Safety Authority (‘HSA’), not to enact regulations or a code of practice for employers on testing for intoxicants in the workplace?
Being under the influence of an intoxicant in the workplace can lead to accidents, poor performance and behavioural difficulties, and is traditionally dealt with by employers as a disciplinary issue. However, since employees have a statutory obligation not to attend work under the influence and employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, to include risks created by employee substance abuse, statutory authority permitting employers to test employees to test for intoxicants may be merited.
When the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”), was enacted, the provision requiring submission by employees for appropriate tests for intoxicants(1) was a welcome support for employers to deal with this issue. There were concerns raised by a number of bodies such as the Irish Council for Civil Liberties, that the section as drafted was too broad and could be subject to abuse, and also that imposition of statutory testing would infringe basic rights of privacy(2). As such, the relevant provisions for the 2005 Act are still not in force, and can only be brought into force by the enactment of Regulations, which have not been forthcoming. The National Advisory Committee on Drugs recommends that testing in the workplace should result from reasonable cause, post-accident or random, as part of an agreed policy(3).
General Statutory Obligations
The 2005 Act(4) requires employees to comply with all relevant statutory provisions and to take reasonable care to protect themselves and others in the workplace. More specifically, an employee must not be under the influence of an intoxicant to the extent that it affects his/her health and safety(5), or that of any other person. Intoxicants are defined in the 2005 Act as including alcohol and drugs (and/or a combination of one or both), to include prescribed drugs and over-the-counter medications. However, at present, absent an appropriate policy, there is no obligation on an employee to undergo a test for intoxicants. How therefore, does an employer make sure that his/her employees are complying with this provision? At present, it is only possible to do so by way of the provisions included within the employment contract or applicable employer policies operated at the place of work.
The 2005 Act states that employers must, so far as is reasonably practicable, manage and conduct work activities in such a way as to ensure the safety, health, and welfare at work of employees and others(6). The 2005 Act also has a further and often overlooked provision that employers must, where appropriate to the risks in the workplace, carry out and make available to employees appropriate health surveillance(7).
If an employee’s intoxication creates a risk to health and safety in the workplace, then in meeting its statutory obligations the employer must immediately remove the employee from that place of work. Failure to remove an employee when the employer knows, or reasonably should have known, that he/she was under the influence of an intoxicant to the extent that the employee might be likely to endanger himself or others is a breach of the 2005 Act. The employer will be liable in such circumstances. In addition to responsibility of the company, this will include potential personal liability of directors and/or managers. However, as, there is no statutory obligation on an employer to test employees for intoxicants, where does this leave the employer?
Employment Equality Acts 1998-2011 (‘the EEA’)
It has long been established by the Employment/Equality Tribunals that alcoholism is a disability, for which protection against less favourable treatment in the workplace is provided in the EEA(8). In accordance with the EEA, intoxicant testing should not target specific individuals on any of the protected grounds outlined in the EEA.
However, if the employee has a safety critical role, employer obligations under safety and health law can outweigh employee rights under the EEA, particularly when there is a written policy on intoxicants which has been openly communicated to employee.
If an employee is suffering from an addiction to an intoxicant, consideration should be given to the duty of an employer to put in place appropriate measures of reasonable accommodation as are required (without imposing a disproportionate burden on the employer), to enable an employee to fulfil the duties of his/her role. While this duty does would not ordinarily extend to providing treatment, facility or thing that a person might ordinarily or reasonably provide for himself, it would go so far as to imply a duty to at least afford an employee some support, including allowing time and flexibility to the employee in seeking treatment to overcome substance abuse issues whilst keeping his/her job open. This accommodation must however be provided with qualified restriction which should be set out in the relevant employer policy.
Testing for Intoxicants
Given the potential risk and exposure to employers arising out of employees being intoxicated in the workplace (in particular in safety critical roles), and in the absence of statutory authority, employers should have policies regarding drugs and alcohol at the workplace, which may include testing. These policies must be proportionate and reasonable. In some employments, the policy may be the subject of agreement between the employer and employee representatives. Such a policy will generally need to be grounded on the contract of employment (similar to policies on bullying / harassment, etc.)
There is little legislative or judicial guidance regarding what makes a policy proportionate and reasonable. The HSA has only issued an Information Sheet on Intoxicants at Work(9), and as far as can be ascertained, does not plan to introduce a code of practice or legislation to implement the provision on testing for intoxicants. Further statutory clarification is therefore unlikely to be provided soon. The HSA's Information Sheet also specifically confirms that testing policies are outside of the remit of health and safety legislation.
In analysing whether drug testing is warranted, a court will likely seek to identify whether, amongst other things, there was a legitimate health and safety risk. From an employment perspective, the Employment Appeals Tribunal (‘EAT’) has approved of drug screening, particularly in safety critical workplaces(10).
There are a number of cases in which a decision to dismiss on the grounds of breach of drugs and alcohol policies has been found to be fair, particularly in safety critical roles.
Policies on Intoxicants
If employers ignore a known risk in the workplace, such as substance abuse, they could be criminally liable under the 2005 Act for any resulting accident.
To avoid these risks, employers should introduce a workplace policy on drug and alcohol use, allowing an employer to remove an employee from a place of work where he or she has reasonable grounds for believing the employee may be under the influence of an intoxicant. In some industries, or where there are safety critical activities being performed by the employees, the policy should also provide for drug / alcohol testing, clearly setting out whether this is to be on a random basis, or on the basis that there is a reasonable suspicion that the employee is under the influence of an intoxicant (i.e. “with cause” testing). The policy must clarify who falls within its scope and explain why the organisation is concerned about alcohol and drug use. Additionally, policies should outline employer and employee obligations under the 2005 Act which would certainly assist an employer in arguing that such a test is reasonable and proportionate. The policy should also set out the support which can be made available to employees who may be suffering from an addiction.
Given the potential implications for employers as a result of any accident in the workplace arising from intoxicant use, consideration should be given to placing the issue of substance testing on a more concrete statutory footing. Certainly this appears to have been envisaged at the time the 2005 Act was enacted(11). Further exploration may prove fruitful in producing workable Regulations for employers, while also protecting the rights of employees.