Drug dependency needs careful handling and proactive management
An employee's use of illegal drugs, whether at work or at home, can affect relationships with colleagues, increase absence, reduce productivity and cause an unsafe working environment. The possession of illegal drugs, and buying or selling them, also exposes employees to the risk of criminal charges.
Since March, it has become an offence to drive while over a specified limit of drug use. This is similar to the drink driving laws and means police no longer need to show an impairment to driving due to drugs, simply that the driver is over the limit. Employers should ensure that any drivers who use a vehicle for work purposes are aware of this change to the law, and understand its implications. The offence carries a mandatory disqualification from driving and a maximum of six months' imprisonment.
Such a controversial issue needs to be handled sensitively and many employers find it difficult to know what they can or should do when faced with an employee with a substance misuse problem.
Employers have a legal duty to ensure, as far as reasonably practicable, the health, safety and welfare of all their employees. This involves providing a safe place (and systems) of work. What this requires of the employer will depend on the nature of the business and the particular role of the employee concerned. For example, an employer will need to put more measures in place to ensure safety where an employee is operating machinery or driving a company vehicle.
Although drug addiction is not itself a disability, any physical or mental impairment arising from drug use (for example, depression) may be capable of amounting to a disability under the Equality Act 2010. Where this is the case, the obligation on the employer to make reasonable adjustments will apply.
Employers could also be breaking the law if they knowingly allow drug-related activities in the workplace and fail to act. Organisations need to ensure they do not ‘turn a blind eye’ to any suspicious behaviour and consider whether police involvement is needed.
In some workplaces, drug testing may be appropriate. This is a highly invasive process which requires employee consent. Justification includes where working under the influence of drugs could give rise to health and safety considerations, for example, because staff are driving or operating heavy machinery. The Information Commissioner's Office has issued good practice guidance which contains some recommendations for situations where drug testing will or will not be acceptable.
Employers also need to be aware of their obligations under the Data Protection Act 1998 in respect of data generated by any drugs testing. This will be sensitive personal data and subject to more onerous obligations than personal data in the ordinary sense, including keeping the data securely and not passing it on to third parties without the explicit consent of the employee concerned.
Checklist
There are a number of practical steps employers can take. Organisations should:
- carry out regular risk assessments to ensure any potential issues surrounding substance misuse in the workplace are addressed
- train staff, particularly those in managerial and supervisory roles, about the nature and causes of drug problems and the effect of drug misuse on workplace safety and performance
- put in place a comprehensive drug and alcohol policy, setting out the employer's stance on substance misuse in the workplace
- consider including a contractual obligation for employees to co-operate with drug testing if this is assessed to be an important requirement
- keep up to date with changes to the law regarding substance misuse
- treat drug problems in a similar way to other health issues, if possible, by providing support to enable employees to return to their duties swiftly
- include provisions in employment contracts and disciplinary policies on the misuse of drugs, stating exactly what the consequences of a breach of policy or a failed drug test may mean. Capability/performance-related matters should be dealt with in accordance with the appropriate procedures.
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