Drugs and Alcohol at Work
Maurice Quinlan examines the implications for employers of recent court rulings including one, which upholds that alcoholism can be defined as a disability under the Employment Equality Acts
Employers must call time
A decision by the Irish Labour Court to uphold the principle that alcoholism is a disability under the Employment Equality Acts 1998-2004 will have major implications for the workplace and the employee assistance profession. The decision confirms the principle that those with alcoholism cannot be treated less favourably at work. An employer is obliged under Section 16(a) of the 1998 Equality Act to do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities and that refusal or failure to provide special treatment for disabilities shall be deemed unreasonable, unless such provision would give a cost other than a nominal cost to the employer.
Under current legislation, an employee must not report or be in an unfit condition at their place of work, due to the consumption of an intoxicant to the extent that they endanger their own or another person’s safety. An employer may remove an employee from the workplace who reports for duty in such a condition. In the event of removal an employee can claim that they are suffering from a disability and would, therefore, be entitled to reasonable accommodation and treatment.
There is the mistaken view by some employers that no action should be taken until regulations on employee drug testing are developed. This view exposes employers to breaches of the Act if an employee is involved in a safety incident under the influence of an intoxicant (defined as drugs or alcohol). Procedures should now be developed for the treatment and rehabilitation of employees whose behaviour presents personal risks to self or others while at work.
Employer’s Legal Obligations
The Safety Health & Welfare at Work Act 2005 (s 13) states that an employee shall, while at work, ‘ensure that he or she is not under the influence of an intoxicant (defined as drugs and alcohol) to the 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’. Furthermore, the Act requires the employee ‘if reasonably required by his or her employer, to submit to any appropriate, reasonable and proportionate tests under the supervision of a registered medical practitioner who is a competent person as may be prescribed’.
Labour Court – Alcoholism classed as disability
In March 2006, the Labour Court upheld the principle that alcoholism is a disability under the Employment Equality Acts 1998-2004. The decision in A Government Department v An Employee crystallises the principle that alcoholics cannot be treated less favourably at work.
S16 of the 1998 Equality Act provides that an employer shall do ‘all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities and that a refusal or failure to provide special treatment or facilities shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost to the employer’.
Employment Appeals Tribunal – Supervisor awarded €30,000
The Employment Appeals Tribunal (EAT) awarded a hotel supervisor €30,000 compensation after she was dismissed for drinking after she had finished her work shift. The supervisor told the tribunal that she felt very distressed when she was advised by the General Manager to leave the premises immediately after she had been caught on surveillance cameras drinking at the bar. The manager claimed that the supervisor consumed the drinks while on duty. In evidence to the tribunal the supervisor said she took the drinks at 11.36pm and another at midnight after she had finished her shift at 11.30pm and was not on duty. The tribunal said it was satisfied that while hotel rules were vague about finishing times the supervisor consumed the first drink after the bar had closed and was therefore not on duty. This decision highlights the importance of companies developing policies and procedures for handling alcohol related incidents in the workplace.
Employment Appeals Tribunal – Luas driver dismissed for positive alcohol test
An employee who reported for the morning shift as a tram driver was selected and screened for drugs and alcohol. The employee expressed dissatisfaction about being tested but nevertheless agreed. He screened positive for alcohol with a BAT (Breath Alcohol Test) of 3 times the limit set by the company in their policy, however he did not wait to provide a urine sample but left the depot.
The claimant was suspended without pay pending further investigation into the matter. During the disciplinary hearing, the employee denied that he refused to provide a urine sample but stated he was unable to provide it due to illness. He also claimed that the testing policy was not truly random. Evidence was also claimed that a large proportion of the workforce, including the claimant had not been given a copy of the company drugs and alcohol policy.
The claimant was dismissed and the Employee Appeals Tribunal subsequently heard the case. The Tribunal accepted that the employee had not received a copy of the drug and alcohol policy but did find that there was a union agreement with the company and that the claimant’s contract of employment stated that employees must comply with the company’s procedures for drug and alcohol testing. The Tribunal found that it was satisfied that the blood sample provided by the claimant was clear evidence that the claimant was in excess of the limit for driving a tram and that it was reasonable for the company to require he submit a urine test having screened positive by breathalyser. The Tribunal was satisfied the claimant set out to avoid giving confirmatory urine and was thus in breach of the procedure. The Tribunal held that it was reasonable for the company to conclude that the claimant was guilty of gross misconduct under the terms of the employment contract and to dismiss him, and further found that the dismissal of the claimant was not unfair.
Best Practice
There are many pitfalls in approaching problems of alcohol and drugs in the workplace. Employers who develop a best practice approach based on international best practice will encounter little resistance .The guidelines are as follows:
- conduct a risk assessment and develop a safety statement
- update alcohol and drug policies [see suggested policy opposite]
- update contracts of employment
- provide employee education & training
- train managers and supervisors in the identification of poor work performance
- update Employee Assistance Programmes (EAPs) and include Alcohol and Drug Programmes
- introduce employee drug testing.
A Model Alcohol and Drug Policy
The company policy is to provide a safe and drug free working environment for all its employees and those who may use its sites in line with the Safety, Health & Welfare at Work Act 2005. The policy covers all employees of the organisation, contractors and those who visit the site.
Employee Responsibility
It is the responsibility of all the company employees to report for duty in a fit manner free from all intoxicants (defined as drugs and alcohol) that may pose a threat to their own safety, that of their colleagues or those who visit the site. Where medication has been prescribed for legitimate use employees should ascertain from the prescribing Doctor if there are any possible side effects which may interfere with the safe operation of plant or machinery and notify their supervisor or HR Manager before reporting for duty.
No consumption or handling of alcohol is allowed while working for the company, except for the handling of alcohol as part of on site process activities. The use, possession, sale, and distribution of illicit drugs are prohibited on company premises in accordance with the Misuse of Drugs Act 1984 /1997. Employees found in possession of illicit drugs will be reported to the official authorities.
The company is prepared, if informed to support an employee with a drug and alcohol problem on a case by case basis.
Any employee who suspects that they are having personal difficulty with alcohol and drugs, are encouraged to seek assistance prior to detection. Full support will be offered including treatment and rehabilitation.
Employee Education and Orientation
The Company will provide training and information for all employees on their obligations under the Act and the adverse health implications of drug and alcohol use.
Training - Managers, Supervisors, Shop Stewards and Safety Reps
Training will be provided to Managers, Supervisors, Shop Stewards and Safety Reps. in the early identification of poor work performance which may indicate a personal problem such as the abuse of alcohol or drugs.
Employee Assistance / Support Programme
Employees identified with drug and alcohol problems will be referred to external support agencies for assessment, and where indicated treatment and rehabilitation. Full confidentiality will be maintained. All records will be retained by the Employee Assistance Programme (EAP). Disclosure will not take place without written consent or except where it is required by law. Employees will be required to complete a return to work agreement on completion of treatment.
Procedures for Handling Drug and Alcohol related incidents
Supervisors, Safety or HR staffs, who have reasonable suspicion that an employee is under the influence of an intoxicant, will request the employee to leave the site. Two people should be involved in the approach. No accusations regarding drugs or alcohol should be made. If the employee is driving then a taxi should be ordered to transport the employee to a risk free environment.
The employee is advised to attend a meeting with the department and HR Manager on the following day. (Safety critical industries with drug testing policies may order a urine test).
The Supervisor will request a performance profile of the employee with details of any previous poor performance such as poor time keeping, unauthorized absence on and off the job, decrease in output and quality, insubordination, relationship difficulties and any recent involvement in grievance or disciplinary procedures
At the follow up meeting the department and HR manager will review the previous history, ask for an explanation from the employee and outline the employee’s obligations under section 13 of The Safety Health and Welfare at Work Act 2005 and the company policy on drugs and alcohol.
An offer of support is extended to the employee. They are free to accept or reject this offer. In the event of acceptance, arrangements are made with the Employee Assistance Programme. Disciplinary procedures are suspended pending the rehabilitation process. This agreed process will form a contract between the individual and the company.
If the individual refuses to accept the support then disciplinary action should be applied in the form of a final written warning for gross misconduct.
