Legal requirements and obligations

Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1992 impose on company and employees a duty to assess the risks and ensure health, safety and welfare of colleagues and employees.

Transport and Works Act 1992 makes it a criminal offence for certain employees on railways, tram ways and guided transport systems to be unfit for work through drink or drugs. The employer has a duty to show due diligence in specifically preventing offences being committed.

The Misuse of Drugs Act 1971 covers provision, supply and possession of controlled drugs. Permitting drug consumption on the premises is an offence.

The Corporate Manslaughter and Corporate Homicide Act 2007 changes direct culpability from body corporate onto the officers of the company. They personally can be prosecuted following an accident, for either not having policy and procedures in place or not having operated those procedures correctly. Simply knowingly allowing an employee suspected to be under the influence of drugs to put fellow employees at risk is such a situation.

Question two. Do I think there is potential for civil suits from employees and family or a criminal prosecution from the H&S Executive or even Police?

Resource needs prioritising to protect the company and its employees.

Policy creation or modification

A company needs to have a drugs and alcohol policy. The creation, monitoring and review of the policy should ideally involve workplace representatives, cover why it is needed, who is responsible for implementation, define drug or substance misuse and most importantly, commit to educate employees why work and drugs don’t mix. Policies should define how help will be provided, how absence from work for treatment will be regarded and how confidentiality will be maintained subject to the provisions of the law. Also they must state under what conditions testing will happen and detail the consequences through disciplinary procedures or rehabilitation.

The previously mentioned laws cover testing "with cause or suspicion" but more importantly, a company policy should detail pre employment screen at interview and the likelihood of being randomly screened every two to three years. It is possible in the initial stages of employment or probation period, and in order to get the deterrent message across, to screen more regularly. Any less frequently than two to three years and the efficacy of the system is called into question. Screening at annual medical is ineffective as the date is planned, unless more time encompassing techniques like a hair test are used.

Question three. Do I want this policy to be water tight?

Keep drugs out of your workplace by pre employment, probation, random and with cause screening.

Implementation