Intoxicants in the Workplace
Issues relating to the use and dependency of intoxicants, both in and outside the workplace, remains a prevalent issue for employers. We revisit some of the primary considerations from an employment law and health and safety perspective when navigating these complex issues.
Intoxicants are defined in the Safety, Health and Welfare at Work Act 2005 (the “Act”) as “alcohol and drugs and any combination of drugs or of drugs and alcohol”. This definition covers legal (for example, prescription and over-the-counter medications) as well as illegal substances.
Under section 8 of the Act, employers are required to ensure, so far as is reasonably practicable, the safety, health and welfare at work of employees. This includes ensuring the prevention of improper conduct or behaviour that is likely to put employees at risk. Sections 19 and 20 of the Act require employers to identify workplace hazards, to complete a risk assessment in relation to those hazards and to prepare a safety statement. Intoxicants may be identified as a workplace hazard and if so, should be included in an employer’s risk assessment and safety statement.
Under section 13 of the Act, employees must comply with all relevant statutory provisions and take reasonable care to protect themselves and others at work. In particular, employees must ensure that they are not under the influence of an intoxicant to the extent that they are in such a state as to endanger themselves or others. Employees are required to cooperate with their employer so far as is necessary to enable their employer to comply with health and safety legislation. For example, an employee should report to their employer if they are taking any medication (including prescription or over-the-counter medication) which might pose a risk to the safety of themselves or any other person. Employees are also obliged to report any work being carried on in a manner which may endanger themselves or any other person and to report any defect in the place of work, the systems of work, any article or substance (including intoxicants) which might endanger themselves or any other person.
The Act allows regulations to be made for intoxicant testing, however, no such regulations have yet been implemented. Consequently, there is no requirement for employees to undergo intoxicant testing or for employers to conduct intoxicant testing. However, the Act does not contain any prohibition on intoxicant testing and employers may carry out such testing where:
- it is provided for in the employee’s contract of employment;
- it is provided for in the employer’s substance abuse policy; or
- where the employee provides prior, explicit, specific and informed written consent to the testing.
An employer cannot force an employee to undergo intoxicant testing. Any refusal to undergo testing may be dealt with as a disciplinary matter by an employer once this is made clear in any substance abuse or disciplinary policy.
Types of Testing
There are various difference types of intoxicant testing that an employer can carry out, including the following:
- For-cause testing: conducted where there is a reasonable suspicion that an employee’s behaviour has been caused by intoxicants or where there is a reasonable suspicion that an employee is unfit to perform their duties due to intoxicants. A reasonable suspicion may arise from several factors including apparent disorientation; slurring of words; smell of alcohol; or disheveled appearance. It is advisable that more than one person submits an opinion as to the existence of these factors prior to the employee being requested to undergo testing.
- Post-accident testing: conducted following a workplace accident in order to determine whether intoxicants were a contributory factor to the accident.
- Random testing: where employees are randomly selected for testing. Random testing must be truly random. If testing is targeted, it must be for-cause or post-accident. When conducting any intoxicant tests (but particularly where the tests are conducted at random), employers should ensure that no single group of employees are targeted in particular. For example, if an employer were to routinely test a particular group of employees, this could potentially constitute discriminatory treatment under the Employment Equality Acts 1998-2021 (the “Employment Equality Acts”) and may undermine any subsequent disciplinary process.
- Pre-employment testing: roles which are safety critical may require intoxicant testing prior to the commencement of employment.
- Abstinence monitoring: conducted where an employee has disclosed a drugs or alcohol related problem.
All testing must be proportionate and reasonable. Testing should be carried out by or under the supervision of a registered medical practitioner who is a competent person.
Where an employee tests positive for drugs and/or alcohol, he/she can be required to immediately leave the workplace. Failure to remove an employee from a workplace when an employer knows, or reasonably should have known, that the employee was under the influence of an intoxicant to the extent that the employee might endanger himself/herself or others is a breach of the Act. A disciplinary sanction in relation to being under the influence of an intoxicant can only be imposed following a full investigation pursuant to an employer’s disciplinary procedure.
Information regarding an employee’s health (including information regarding intoxication and intoxicant testing) is considered to be special personal data and should be processed in accordance with data protection laws. An employer’s privacy notice or other data protection documentation should outline how sensitive personal data relating to intoxicants is processed.
Alcohol and/or drug dependency may be classified as a disability pursuant to the Employment Equality Acts. Therefore, depending on the circumstances of the case, an employer may be obliged to provide reasonable accommodation to an employee suffering from alcohol and/or drug dependency. While this duty will not usually extend to providing a certain treatment or facility that an employee might reasonably provide for himself/herself, it does include a duty to afford an employee some support, including allowing time and flexibility to the employee to seek professional treatment for dependency issues. Employees who have a dependency problem should generally be given an opportunity to seek professional treatment before an employer considers dismissal.
Substance Abuse Policy
In order to assist with managing intoxicants in the workplace, and where an employer wishes to undertake intoxicant testing, employers should implement a substance abuse policy. This policy should only be implemented following consultation with employees and any trade union. Any policy should be drafted in accordance with the employer’s risk assessment and safety statement and should be consistently enforced. Training on the policy should be provided to all employees by a competent person.
Any substance abuse policy should include the following:
- details regarding who comes within the scope of the policy;
- information regarding the rights and obligations of the employer and employees in connection with intoxicants;
- information regarding the use of prescription and over-the-counter medication;details regarding how the employer will approach employees who have an alcohol and/or drug problem;descriptions of the actions an employer can take to enforce the policy, for example the right to search an employee;
- information regarding testing; and
- information regarding confidentiality and data protection.
This list is non exhaustive.
If you have any questions in relation to how to manage intoxicants in the workplace, please contact a member of the Employment Group at Arthur Cox.
The content of this update is provided for information purposes only and is not legal or other advice.