Addressing Intoxicants in the Workplace

The use and dependency on intoxicants, whether within or outside the workplace, continue to pose significant challenges for employers. We consider perspectives of employment law and health and safety in navigating these complex issues.

Definition and Legal Framework

Intoxicants, as defined in the Safety, Health and Welfare at Work Act, 2005, encompass alcohol, drugs, and combinations thereof, including both legal (e.g. prescription medications) and illegal substances. Employers are mandated under the Act to ensure the safety, health, and welfare of employees, including preventing conduct that endangers individuals. Hazard identification, risk assessment and safety statements under Sections 19 and 20 of the Act should encompass intoxicants.

Employee Obligations

Employees are obligated to comply with statutory provisions, taking reasonable care to protect themselves and others. They must not be under the influence of intoxicants to the extent that it endangers anyone's safety. Cooperation with employers to facilitate compliance with health and safety legislation is essential, including reporting any medication use that may pose risks.

Intoxicant Testing

While regulations for intoxicant testing exist under the Act, they have not been implemented. To clarify, there is no statutory requirement for testing. However, employers may conduct testing if outlined in employment contracts, substance abuse policies or with explicit employee consent. Consultation with employee representatives is crucial for legally defensible procedures. Refusal to undergo testing may lead to disciplinary action, provided it's clearly articulated in relevant policies.

Types of Testing

Various testing methods include for-cause, post-accident, random, pre-employment and abstinence monitoring. Testing must be proportionate, reasonable and conducted by competent medical practitioners. Positive results may lead to immediate removal from the workplace, but disciplinary actions require a thorough investigation.

Data Protection

Health-related information, including intoxicant testing results, falls under special personal data and must comply with data protection laws. Employers should outline processing procedures in privacy notices and ensure confidentiality.

Intoxicant Dependency

Alcohol and drug dependency may qualify as disabilities under employment equality laws, necessitating reasonable accommodation by employers. Professional treatment should be afforded before considering dismissal, with policies drafted in consultation with employees and unions.

Substance Abuse Policy

Employers should implement substance abuse policies aligned with risk assessments and safety statements, outlining rights, obligations, testing procedures, confidentiality and data protection measures.

Legal Background

The Act addresses employee responsibilities regarding intoxicants, though regulations for testing remain unimplemented. Employers' health and safety obligations require hazard identification and safety statements that consider intoxicants.

Employer's Duty

Employers must ensure fair and proportionate testing procedures, reflecting organisational needs and individual risk assessments. Consent, transparency and adherence to data protection laws are paramount.

Conclusion

Addressing intoxicant use in the workplace requires a comprehensive understanding of legal obligations and practical considerations. Employers must navigate these challenges with clear policies, fair procedures and a commitment to employee safety and well-being.

About the author: Sinéad Leahy is a trainee solicitor with Dermot G. O’Donovan Solicitors.