Drugs and Alcohol Testing in the Workplace – One to Watch
In this article, Deirdre Crowley comments on the recent announcement by Minister Varadkar that employers will be held accountable on a statutory basis for employees driving on public roads when intoxicated.
The Minister confirmed that the legislation, which is heralded to be far reaching in its meaning and effect, is currently being drafted and is expected to be published in 2015. Such is the complexity of this area that employers are well advised to consider and address their existing and potential liability as soon as possible.
Currently, there is no general obligation to test for intoxicants although a specific obligation to test arises in some safety critical sectors to include the rail, aviation and construction sectors. The provision obliging employees to submit to testing – section 13(1) (c) of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) – is now redundant as the required regulation setting out the circumstances in which testing would take place in accordance with the section were never brought into force. Significantly however, where intoxicants are identified as a risk in a safety statement, an employer must consider its duty to provide a safe place and a safe system of work and further whether this duty includes an obligation to test. Clearly in the absence of implementing regulations, the 2005 Act still creates an obligation to test “by the back door” and leaves employers in the invidious position of having to determine for themselves on a case by case basis whether an obligation to test is reasonable in the circumstances. Minister Varadkar’s comments suggest that the Oireachtas intends to remedy this statutory lacuna in upcoming Road Traffic legislation.
Proposed Road Traffic Bill – The Impact on Employers – An Overview
Where an employee operates vehicles on public roads, an obligation to test will arise creating a myriad of practical and legal challenges for employers, unions and employees alike. There have been suggestions since the Minister made this statement that the new legislation will also include scenarios where employees drive away from company functions under the influence.
Existing Statutory Penalties
The 2005 Act sets out the general duties and obligations of both employers and employees to ensure a safe and healthy workplace. The seriousness of a breach of an employer’s obligations under the 2005 Act cannot be underestimated. A proven breach of the 2005 Act could result in a criminal sanction meaning that any breach of the 2005 Act is more than simply an insurance matter. The potential penalties that arise include a fine where convicted on indictment of up to €3 million or a term of imprisonment not exceeding 2 years, or both.
By way of commentary, caselaw indicates a disparity in fines levelled against employers in health and safety matters such that the fines are clearly inconsistent. A court will be slow to place a disproportionate financial burden on an employer which would for example, render an employer insolvent, but a court typically imposes fines which act as a deterrent to managers.
Employer’s Existing Statutory Obligations – A Summary
Section 8 of the 2005 Act requires an employer to ensure so far as is reasonably practicable, the safety, health and welfare at work of all employees. This obligation includes managing and conducting work activities to prevent improper conduct or behaviour which is likely to put employees at risk.
Sections 19 and 20 of the 2005 Act require that an employer must identify hazards in the workplace, carry out a risk assessment and draw up a safety statement. If intoxicants are identified by the employer as a hazard at work, the safety statement must take account of this. Significantly, where the consumption of intoxicants is defined as a hazard in a safety statement in a safety, an employer is obliged to test for intoxicants. This obligation exists regardless of whether the employer operates a business using private or public roads.
In addition, Section 22 of the 2005 Act requires that the employer shall ensure that health surveillance, appropriate to the risks in the workplace identified by the risk assessment, is made available to employees.
Section 13 of the 2005 Act sets out the employee’s obligations in respect of health and safety in the workplace. Section 13(1)(b) requires that while at work an employee must not be under the influence of an intoxicant where the extent of the intoxication could endanger his or her own safety, health and welfare at work or that of any other person present. An employee is also required to comply with all relevant statutory provisions and to co-operate with his or her employer to ensure compliance with health and safety legislation.
Intoxicant is defined in the 2005 Act as ‘alcohol and drugs and any combination of drugs or of drugs and alcohol’. This definition encompasses both legal and illegal substances, it includes prescribed drugs and over the counter medications.
Drugs and Alcohol Testing Policy
In September 2011, the HSA published an ‘Information Sheet for Employers and Employees on the Requirements under Health and Safety Legislations’. This information sheet takes the form of a Q&A and, while it has no legal status, is helpful in providing guidance to employers and employees in relation to their obligations under the 2005 Act.
Employers may carry out intoxicant testing where (i) a workplace is described as safety critical and where the consumption of intoxicants is identified as a hazard, (ii) testing is provided for in the employee’s contract of employment or in a collective agreement, (iii) it is provided in the employer’s drugs and alcohol testing policy, or (iv) with the express consent of the employee. Where testing is in place or ought to be in place, an employer needs a policy in respect of intoxicant testing.
Key issues to flag when considering the terms of an intoxicant testing policy include but are not limited to:
- Disability, mitigating circumstances – prescribed medication
- Data Protection – how to store and process sensitive personal data
- Job security
- Appropriate sanctions
- Clear procedures in relation to the various types and forms of testing
The Minister for Justice, Equality and Defence, Mr. Shatter recently confirmed on-going consultation on the preparation of a Criminal Justice (Corporate Manslaughter) Bill. The proposed legislation creates an offence of corporate manslaughter for corporate entities and a secondary offence for corporate managers. The draft legislation provides for an unlimited fine and up to 12 years imprisonment, as well as disqualification from acting as a manager in the future. Readers’ attention is also drawn to section 160 of the Companies Act 1990 which disqualifies a person from acting as a director, auditor or from managing a company where convicted on indictment in relation to any offence in relation to a company.
Where to From Here?
If the extension of an employer’s liability to incidents involving employees driving under the influence of intoxicants is enacted, employers will need to take account of this responsibility when considering their policy on intoxicants. Until the parameters of such proposed liability are known, it is difficult to predict the potential liability of employers in such instances and in drafting a policy each workplace will differ depending on its unique needs and obligations.
Deirdre Crowley can be contacted by email at firstname.lastname@example.org and by direct phone at 021 – 428 9560.