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HR and substance abuse – One for the road?

We all have days when the first thing we think about when we walk through the door in the evening is a glass of wine … or four. However, what happens when it’s the first thing you think about when you wake up, or when you have an employee who has this issue?  Asks Caroline Baker, Associate at GQ Employment Law LLP.

Whilst not common, managing employees with alcohol and substance abuse problems is usually emotional, and rarely straightforward. All employers have a legal obligation to provide a safe place of work, and safe systems of work, for employees. That is the case whether the employees work in an office, are out in the field, or work remotely from home. Many employers have dedicated substance abuse policies, or at least policies which deal with employees attending work whilst under the influence of drugs/substances. As is often the case in the work environment, having a set of clear rules is always recommended.

For remote working employees, it is important to make sure the policy reflects their daily work patterns, as much as those of employees who are office-based. For example, an employer might wish to implement a “zero tolerance” alcohol policy for employees who drive cars, such as travelling salespeople, and to spell out that substance misuse whilst working from home is still unacceptable even though it is not in an office. The exact nature of the particular business and its workforce will inform the way in which the business deals with drug and alcohol abuse, and in particular how proactive it is in relation to designing policies and determining how to act in advance. As usual, some time spent considering policies and contractual wording in advance can be time very well-spent in the long run.

In certain industries, an employer may wish to go further and implement drug/substance testing. For example, this may be the case in transport or safety businesses such as pilots or surgeons, or those involving high risk, high-value decisions, for example front-office trading roles in financial institutions. The law on drug testing is complex, and so professional advice should normally be sought before introducing it. In the UK, the general position is that drug testing may be an option open to employers provided there are objective health and safety reasons behind the decision to test, and the way in which testing is carried out – and the results stored or used – complies with data protection requirements. In jurisdictions outside the UK, the law on drug testing varies dramatically. Where a business decides to introduce testing, it is wise to provide for this in contracts and policies to avoid arguments over the right to do so and to manage expectations, especially if the monitoring involves random blood or urine testing.

One of the most difficult issues for HR is how to know that an employee has a problem with alcohol or drugs. Of course, they may tell you, but often they may be much more reluctant to be open about any issue, assuming they have accepted that they have an issue at all. Where an employee has not directly told you they have a problem, there may still be factors which are giving you cause for concern. The difficulty is that unless someone is sipping from a hip flask in the office in the middle of the day, which is perhaps unlikely, the signs can be subtle and could often be equally symptomatic of many other issues at home. However, regardless of what the cause is, it is helpful to get to the bottom of it. Therefore, if an employee has a sudden change in behaviour, starts to come into the office late, is never available when he or she should be working remotely, or has an abrupt dip in performance, the best action is often to engage with the individual and ask if everything is OK.

If after a conversation you have grounds for suspicion that there is an alcohol or drugs- related issue, which the employee is denying, you may wish to send the individual to occupational health for assessment. Although alcohol and drug addictions are specifically exempted from the definition of “disability” within the Equality Act 2010, illnesses caused by such addictions, for example depression, are not excluded. Consequently, care always needs to be taken in handling these issues and professional advice from an occupational health professional is well advised. The action that an employer will ultimately then want to take in relation to an employee with an addiction will usually depend on how much of an impact the issue is having on the business, whether there is any related disability, and whether the abuse is long or short-term. Options for an employer range from providing counselling and rehabilitation assistance, to taking a harder line, up to potentially dismissing an employee, whose addiction has already seriously impacted on the business. For an employer considering dismissal, it is important to remember that a dismissal will usually not be justified, unless the abuse has already had a significant negative impact on the business, or will do so imminently.

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