THE Safety, Health & Welfare at Work Act 2005, which comes into force in September, breaks new ground on a notoriously complex issue.

Strengthening the law on workplace safety generally, it envisages giving employers a legal right to test their employees for drug use. The number of cases arising out of workplace accidents is on the rise and, while obviously these are not all down to alcohol or drugs, ultimately it is the employer who is liable if they are a factor.

While workplace drug testing is common in America and to a lesser extent in Britain, it is rare in Ireland. The zero-tolerance approach of many American multinationals has led to some cases of more general workplace drug testing in their Irish subsidiaries.

However, most Irish employers have been reluctant to tackle this issue due, at least partly, to the legal uncertainties surrounding it, and have preferred to rely on general disciplinary procedures to deal with cases of workplace intoxication.

To date, there has been little legal guidance from legislation or the courts on the extent to which an employer can interfere legitimately with an employee’s privacy rights by testing that employee for alcohol or drug use.

The small number of employers that have ventured into this area are generally those in safety-critical areas where drug use creates a real risk to other employees or the public, such as airlines (and then only indirectly, through the pilots licensing process). Even for heavy goods vehicle drivers and the transport sector generally, testing has been very restricted.

While the new legislation is noteworthy as the first venture into this field, its overall impact will be limited. The government has been keen to “allay fears” of more generalised testing and has emphasised that this is by no means a carte blanche for employers to merrily test employees for drug use in the absence of a specific health and safety context.

This is a health and safety measure, not a moral crusade, and the part of the act dealing with general drug testing in the workplace will not be implemented until further consultation with various interest groups including the Health & Safety Authority, employers’ groups and unions.

While existing employees (especially those outside the safety- sensitive sectors) may raise objections to their employers’ attempts to test, job applicants are in a different position.

Here employers can set out their stall from the start of the relationship and make drug testing a precondition to employment and also provide for interim tests after commencement of employment. This approach has greater legal certainty and is gaining momentum with Irish employers.

Test results indicating recreational drug use may well persuade potential employers not to recruit, and unsuccessful applicants would have little legal recourse if that occurred.

Of course, a distinction must be drawn with medicinal drugs, whose use alone cannot permit an employer not to recruit.

Job applicants are protected by employment equality laws that prevent employers discriminating on disability grounds. Any employers keen to introduce such generalised testing will undoubtedly have to establish clear policies in this area, ideally on the basis of consensus with employee representatives.

Barry Walsh
senior associate employment law unit
A&L Goodbody