ee also ‘Alcohol and drug testing’ - Section 2(1) of the Safety Health and Welfare at Work Act, 2005, defines “intoxicants” as including “alcohol and drugs and any combination of drugs or of drugs and alcohol”. Importantly, section 13(1)(b) and (C) of the 2005 Act outline that an employee has a duty to not be under the influence of any intoxicant to such an extent as they might endanger lives and it also places employees under the duty to submit to any appropriate, reasonable and proportionate tests for intoxicants if required by their employer. The regulations needed to enforce the requirement to submit to alcohol or drug testing has not yet been finalised although it is only a matter of time at this stage. However there is nothing precluding an employer and employee from contractually agreeing to an intoxicant testing policy. The Labour Court has stated that they have “consistently supported the use of drug and alcohol testing in safety critical employments”. Some interesting notes to take from the above is that the definition of intoxicants does not distinguish between prescription and non-prescription drugs. Furthermore, section 13 states that an employee cannot be intoxicated to such an extent as to be a danger which does suggest that it is acceptable for an employee to have some level of intoxicant in their system as long as it isn’t too much. Lastly, the Act does not provide any guidance as to how much is too much. Some general guidance in respect of policies on intoxicants is that they must be clear and unambiguous; they must clearly set out what is and is not acceptable, they must have been issued to and agreed upon by the employee before testing and the processing of such testy results must comply with Data Protection requirements. In general, it is more prudent to have a clear zero tolerance policy in respect of intoxicants outlined in employees’ terms and conditions of employment.
