The Practical Lawyer


Drugs and alcohol – managing in the workplace

An interesting article reminds employers to review their drugs and alcohol policies and breaches of them in the light of recent developments. Businesses are increasingly expected to support employees who have a drug or alcohol problem, rather than take immediate disciplinary action.
The employer must decide what amounts to a misconduct issue as distinct from what is a capability problem – this will be dictated by the nature of the business. Transport and construction companies, for example, will place greater emphasis on health and safety than those employing only desk-based workers. The policy should be clear as to what steps the employer will take. It is suggested that drug misuse should be treated as a health issue rather than an immediate cause for dismissal or disciplinary action. The extent to which an employer can provide support will depend on their size and the resources available.
A policy should cover illicit drugs and legal ones on the basis that many of the latter medications can impair performance, induce drowsiness, reduce concentration and increase nausea etc.
An important issue for employers when writing and reviewing a drugs policy is whether to test employees and in particular, whether to carry out random testing. In every case an employer should obtain consent, contractual or otherwise, to carrying out a test. A well drafted policy will spell out the sanction for refusing to take a test where a contractual obligation exists. The results of any test will be sensitive data and must be treated as such. The ICO has provided specific guidance on drug testing in its publication The Employment Practices Code. This states that testing is unlikely to be justified unless it is for health and safety reasons and that post-incident testing, where reasonable grounds for suspicion exist, is more likely to be justified than random testing. Practitioners advising their employer clients would be well advised to read the Code. Source: [2019] 199 Employment Law Journal 15.


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