Drugs and Alcohol at Work -

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1 Providing Training and Consulting to Sustain and Support Employee Engagement in a Changing Business Environment Drugs and Alcohol at Work - Complying with Section 80 and Section13 of The Safety, Health and Welfare at Work Act 2005

2 Employers Legal Obligation To comply with Section 13 of the Act which came into effect on 1st September 2005 Employers should develop the following:- Update company safety statement to include workplace intoxicants. Introduce an agreed drug and alcohol policy and procedures. Advise employees of their obligations under the act and conduct health surveillance training sessions on drugs and alcohol. Other preventative measures which may be developed are as follows:- The training of Managers and Supervisors and team leaders in procedures for managing employees who report for, or are on duty, under the influence of intoxicants, defined as drugs and alcohol. The identification of local support services for treatment and rehabilitation of employees who may have developed drug or alcohol problems. Review developing case law. Employee Responsibility - Familiarise themselves with and always conform to the company's Safety Health and Welfare policy. - Submit themselves to any reasonable tests by a competent person in connection with intoxicants (guidance pending from the Health and Safety Authority). - Attend training that may be reasonably be required by the employer. - Observe all safety rules and take responsible care for his/her own safety, health and welfare and that of any other person who may be affected by his/her acts or omissions whilst at work. - Co-operate with his/her employer and any other person to such extent as will enable his/her employer or the other person to comply with any of the relevant statutory provisions. Case Law - 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 The decision in A Government Department -v- An Employee crystallizes the principle that alcoholics cannot be treated less favorably at work. Section 16 (a) 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. 1

3 Action Checklist Intoxicants No. Action Date (1) Develop Agreed Drug and Alcohol Policies and Procedures [ ] (2) Conduct Drug & Alcohol Risk Assessment Update Safety Statement [ ] (3) Advise Director s and Manager s of their Responsibilities (Section 80) [ ] (4) Outline Employee Responsibilities & Conduct Team Leader Training [ ] (5) Implement Employee Support Services [ ] Assessment, Treatment & Rehabilitation, (Reasonable Accommodation) [ ] (6) Employee Drug Testing (when guidance published by Health & Safety Authority) [ ] Adapted from Substance Abuse and Mental Health Services Administration (SAMHSA) Centre for Substance Abuse Prevention Included in the Safety, Health & Welfare at Work Act 2005 is a new duty that employees, while at work must not be under the influence of intoxicants (defined as drugs & alcohol) to the extent that they endanger themselves and others and that they submit to tests conducted by or under the supervision of a Doctor (This section will come into force when guidance is issued by the Health and Safety Authority) To comply with the Act the EAP Institute offers the following services:- Developing policies and procedures which outline how issues will be dealt with. Provide supervisors training on the identification of poor work performance caused by the use of intoxicants (defined as drugs and alcohol). Conduct employee orientation and education. The adoption of Employee Support Services / Employee Assistance Programmes. Implement a best practice procedure for drug and alcohol testing. For further information contact: Maurice Quinlan Director, EAP Institute 143 Barrack St Waterford, Ireland Tel: Fax: maurice@eapinstitute.com 2

4 Comprehensive Approach to Workplace Drugs & Alcohol 1 Agreed Drug and Alcohol Policies & Procedures 2 Risk Assessment, Control Measures & Safety Statement 3 Outline Directors & Managers Responsibilities 4 Outline Employee Responsibilities 5 Provide Employee Support Services Treatment & Rehabilitation 6 Employee Drug Testing (when guidance is published by the HSA ) 3

5 Developing Case Law Employee Drug Testing: Guidelines should be agreed. The Labour Court, in backing the re-engagement of an employee who had tested positive for drugs, said it was imperative that the employer and the union agree guidelines on drug testing procedures. The court issued its decision after hearing expert evidence for the employee, that if the employer had followed international best practice, as set out in the European Workplace Drug Testing Society s guidelines, (EWDTS) the result of the drug test would have been negative. This view was disputed by an expert witness for the employer, who gave it as his opinion that the result in the case was properly classified as positive. The sample taken from the worker measured 8.6ng/ml, while the EWDTS recommends a cut off point of 15ng/ml. The company, whose policy towards drugs is one of zero tolerance, also argued that the worker s job was safety critical. The union representing the worker, the TEEU, as well as arguing that the result of the test should be negative, argued that a collective agreement between it and the employer should be in line with the provisions of the Railway Safety Act, which requires the adoption of a code of practice on drug and alcohol testing, in consultation with the union. No such agreement had been adopted. Having considered the submissions the court decided that the worker should be reengaged from the date of the decision. While it was satisfied that the employer acted honestly and reasonably, it made its decision in view of the recommendation that agreed drug and alcohol testing guidelines be put in place. Reproduced by kind permission of Health & Safety Review 4

6 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 Blood 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. Following this action 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 from his employment on the 5th September 2005 and the case was subsequently heard by the Employee Appeals Tribunal. 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 breath 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 breathalyzer. 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 and the claim under the Unfair Dismissals Act failed. 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 5

7 REFERENCES & WEB ADDRESSES (1) Workplace Health & Wellbeing Strategy, Health & Safety Authority, May (2) Safety Health & Welfare at Work Act 2005, Health & Safety Authority. Tel: (0) (3) Guidelines on Safety Statements (1990), Health & Safety Authority, Tel (0) (4) European Laboratory Guidelines for Legally Defensible Workplace Drug Testing (5) Guidelines on Developing and Implementing Workplace Drugs and Alcohol Policies, available from HSENI, (6) Drug Use in Ireland and Northern Ireland (January 2007), First results from the 2006/2007 Drug Prevalence Survey, National Advisory Committee on Drugs Tel: (0) (7) Faculty of Occupational Medicine s Guidelines on Testing for Drugs of Abuse in the Workplace, United Kingdom, (8) O Sullivan, John Mark, Business Development Manager, Claymon Laboratories, Paper presented to the Seminar Drugs & Alcohol at Work Complying With Section 13 of the Safety, Health & Welfare at Work Act nd January (9) Substance Abuse and Mental Health Services Administration (SAMHSA) Guidelines on Drugs and Alcohol. 6