Intoxicants: To Test or not to Test?

The misuse of intoxicants in the workplace is an increasing concern for employers. Companies feel that the introduction of testing is the solution to this issue, however it is advised to carefully consider any testing programme as it must be managed correctly to ensure it is not counterproductive.

Intoxicants in the Workplace

An intoxicant includes drugs or alcohol or a combination of both (including prescribed medication). Under Section 8 of the Safety Health and Welfare at Work Act, 2005, (the Act) the employer has a duty “to manage and conduct work activities in such as way as to prevent, so far as reasonable practicable, any improper conduct or behaviour likely to put the safety health or welfare at work of his or her employee at risk”. The employee is responsible for ensuring that they are “ …not under the influence of an intoxicant to such an extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person…”.

Legal Basis for Testing

There is no statutory basis in the Act to support testing for intoxicants in the workplace. Section 13 (1) (c) of the Act has never been implemented which has led to a common misunderstanding that testing is a legal requirement. It should be noted that employees who drive for work are subject to the requirements of the Road Traffic Acts (1961 to 2016) and may have to submit to an intoxicant test as required by An Garda Siochana. Finally, the Railway Safety Act, 2005 (Sections 84, 87, 89-91) also includes specific requirements for intoxicants testing but this is sector-specific. In summary, as the law stands, most employers could only compel a test if provided for in the individual’s contract of employment or an existing company policy.

When to Test?

Companies consider implementing testing for intoxicants in a number of scenarios. There may be an increased number of incidents/accidents in a specific area or on specific days or times, evidence of drug use and other anecdotal evidence that intoxicants are being misused. In addition, there may be a corporate directive that testing is being introduced company-wide.

It is strongly recommended that the justification for introducing or carrying out intoxicants testing must be clear to all stakeholders. Ideally, it should be an outcome of the Risk Assessment process. In the case of safety critical role, an agreed control measure to reduce the risk may to carry out intoxicants testing.

Employees should be informed in advance that testing is being introduced and the rationale for doing so. They should also be allowed to consult with an Occupational Medical professional to discuss the testing methodology.

Types of Testing

In some cases, intoxicants testing may be a useful way of ensuring employees are fit for work in advance of employment* (at the pre-employment stage), as a deterrent (random testing), as part of an accident investigation process (with-cause testing) or as part of a general programme where everyone is routinely tested.

*In the case of pre-employment intoxicant testing ensure that the employee has not commenced work in advance of the test results.

Intoxicants Policy

Where testing for intoxicants is to be implemented a clear policy should be drawn up by management which demonstrates the justification for testing.

Managers and employees should be trained to deal with intoxicants in the workplace and to treat other workers with dignity and respect. Reference should be made to the Equality Acts as there may be addiction issues which could be classified as a disability. Also, if resources are available for testing then an Employee Assistance Programme should also be considered. The policy should contain the following information:

• Who is going to be tested?
• When are employees going to be tested?
• Where is the employee going to be tested?
• Who will test the employee?
• What tests are going to be used and the procedures to carry out each?
• What will happen if an employee refuses to allow testing to be carried out?
• What is going to happen if the employee tests positive or negative?

If a positive test result if received and it is established that there is a disability, this policy should address how this should be managed.

Data Protection Considerations

The Intoxicants and Data Protection Policy should outline how sensitive personal data is managed internally or with the third-party provider (the processor). If engaging with a third party provider, there must be a Data Processing Agreement in place which would include:

• The subject matter, duration, nature and purpose of the data processing;
• The type of personal data being processed (i.e. Health Information and Test Results);
• The categories of data subjects whose personal data is being processed; (i.e. if particular groups of employees have been identified)
• The obligations and rights of the controller

While there may not a specific legal requirement to test, the company could determine that there is a legitimate interest to process this data as reasonable way of compliance with the Act.

Useful Resources

Intoxicants at Work Information Sheet

European Laboratory Guidelines for Legally Defensible Workplace Drug Testing

SFA Webinar - Managing Intoxicants in the Workplace

If you have any further queries on this topic, please contact Fiona on fiona.mulligan@sfa.ie or 01 6051557.