First published: April 25th 2023
Last updated: April 25th 2023

After a recent UN report found that Ireland has the fourth highest-rate of cocaine consumption in the world, it appears substance abuse issues are also trickling down to the workplace.

We suspect the UN’s figures add up as our HR consultants are also fielding more queries in the area of drug and alcohol testing in the workplace.

There’s a range of legal and health & safety considerations for employers to consider to ensure that workplace drug and alcohol testing complies with employment law in Ireland.

So, let’s take a look at the main legal points employers need to get right.

Employer Health & Safety Obligations

Employer statutory duties are set out principally in Section 8 of the Health, Safety and Welfare at Work Act 2005 which requires you to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all employees.

This duty includes managing and conducting work activities to prevent improper conduct or behaviour likely to put employees at risk.

Sections 19 and 20 of the Act require employers to identify hazards in the workplace; to be in possession of a written risk assessment of the risk presented by those hazards and to draw up a safety statement.

If intoxicants (the definition includes alcohol, illegal and legal over the counter or prescription drugs) could be a hazard at work, the safety statement should take account of this.

Employee Health & Safety Obligations

Employees must ensure they are not under the influence of an intoxicant where the extent of the intoxication could endanger their own safety, health or welfare at work or that of any other person present.

Employees are also required to cooperate with their employer to comply with health and safety law. Employees should report to their employer if they are taking any medication for instance which might pose a risk to the safety of any person at work.

Employees are also required to report certain workplace health and safety issues to their employer. This could include reporting a colleague who appears to be under the influence of an intoxicant and who is a danger to himself or others. You need to exercise caution before making decisions based on the evidence of one employee against another. Carefully weigh up the evidence and the potential risks before deciding to take action against the employee who is alleged to be under the influence.

Other reportable issues would include:

• any work being carried on in a manner which may endanger the safety, health or welfare at work of themselves or any other person, or
• any defect in the place of work, the system of work or any article or substance which also might endanger themselves or any other person.

No statutory rules around workplace drug testing

It may come as a surprise to learn that there are no circumstances set out in legislation that would give employers a mandate to require staff to undergo workplace drug testing.

On the other hand, there is also no statutory prohibition on workplace drug testing. If you believe that there are reasonable grounds for requiring staff to undergo workplace drug testing, there are no specific rules preventing you from introducing a policy in this area.

You do however have to consider the issue of employee consent.

Drug testing requires consent

As there are no statutory regulations in place for drug and alcohol testing in the workplace, it is a matter for agreement between the employer and the employee in the employment contract.

You therefore need employee consent before carrying out any drug and alcohol testing in the workplace. You can obtain consent in a number of ways:

• in the employment contract
• in your employment policies, or
• a once off specific consent to a specific test.

What happens if an employee shows up intoxicated?

If an employee is behaving erratically or appears to be under the influence of an intoxicant and it’s reasonable to assume that he is a danger either to himself or others, you are entitled to remove the employee from their duties.

In these circumstances, you may have grounds to ask the employee to undergo a drug or alcohol test. You may wish to test an employee for intoxicants in this scenario as it may be used in evidence in any subsequent disciplinary action.

You should only carry out a test however if you have obtained the employee’s consent through the employment contract, a collective agreement or a specific written consent to the test.

Random drug testing

You should only introduce a random drug testing policy if this health and safety measure is deemed critical for the role and maintaining workplace safety. The level of risk would need to be established through the risk assessment process and the specific need for random drug testing should be documented in the safety statement.

You may think you need to conduct a random drug test if there is good cause or in other words if it is obvious that one of your employees is under the influence. You should only carry out such a test if it is carried out in accordance with appropriate standards and you have obtained employee consent through the employment contract or a collective agreement.

Expert HR advice on workplace drug testing

As there are no statutory regulations that give employers specific rights in relation to workplace drug testing, you need to protect your position by confirming your policy in your employment contract.

For help with your drug testing or any other workplace policies, call one of our HR and health & safety experts today on 1800 719 216