There is no requirement for employees to undergo testing for intoxicants under existing legislation- the SAFETY, HEALTH AND WELFARE AT WORK ACT 2005.
Neither is there an obligation on employers to test employees for intoxicants.
Section 13 (1) (c) provides for the making of regulations for the testing of employees:
(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,
However no regulations have yet been made so this clause does not apply.
Intoxicants are defined in the SAFETY, HEALTH AND WELFARE AT WORK ACT 2005 as
“intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol;
It is clear therefore that over the counter medicines and/or prescribed drugs are included.
The employer’s obligations under health and safety legislation are set out in section 8 of the Act and are covered here. If intoxication at work is identified as a hazard it must be addressed in the employer’s safety statement.
If the employer cannot have the employee tested, what action can he take?
If the employee’s behaviour presents a danger to himself or others the employer can remove the employee from the situation.
While there is no obligation on the employer to test for intoxicants to obtain evidence, testing may be a company policy. If this is the case then any testing would need to be carried out in accordance with recognised standards. It would also need to be included in the employment contract or collective agreement.
The key point for employers is that where an employee appears to be “under the weather” that he is removed from the workplace if the employer considers him to be a risk to himself or others.
Employees too have obligations in respect of intoxicants in the workplace; these would include the reporting of a colleague who appeared to be under the influence of an intoxicant and who is a danger to himself or others.
Employers must deal with the issue of intoxicants in the workplace sensitively. Whether for example you would act on the evidence/opinion of one person or not would depend on the potential risk and danger.
In conclusion, it may be prudent to have an “intoxicants policy” in your workplace. We have supplied such policies (and others) to employers. If your workplace would benefit from one we would be happy to supply one at a very competitive price.