It’s come to my attention that one of our employees has been taking illegal drugs. I know he takes them at the weekend because he’s quite open about it but I don’t, as yet, have evidence that he’s taking them during working hours but I worry he might be. There is a company policy in place regarding drug testing which is referred to in his contract. In light of this, can I legally send him for tests? If so, and the test comes back positive what options are open to me?

John Jermyn writes:

This is a very complex issue due to the fact that the statutory provision for drug testing in the workplace has not yet been fully implemented.

Section 13(1) (c) of the Safety, Health and Welfare at Work Act 2005 (“the Act”) provides the following:

“An Employee shall, while at work – If reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed”.

Whilst this section allows regulations to be made for testing for intoxicants, until such regulations are introduced by the relevant minister it does not have any legal effect.

In other words, strictly speaking there is no legal requirement for employees to undergo testing for intoxicants under the Health and Safety legislation.

The Health and Safety Authority (“HSA”) has recently issued a publication entitled “Intoxicant at Work Information Sheet” which offers a guide to employers and employees regarding their obligations on intoxicants in the workplace. Again it should be noted that this publication has no legal force or effect.

The information sheet outlines an employer’s duties in relation to the Act which are as follows;


1. Section 8 of the Act 

“requires you to ensure, so far as practicable, the safety, health and welfare at work of all employees. This includes managing and conducting work activities to prevent improper conduct or behaviour likely to put employees at risk”; and


2. Sections 19 and 20 of the Act

“require employers to identify hazards in the workplace; to be in possession of a written assessment of the risk presented by those hazards and to draw up a safety statement. If intoxicants could be a hazard at work, the safety statement should take account of this.”


The information sheet also confirms that as an employer, there is no requirement for testing of employees for intoxicants and further advises employers that the question they must address is whether the employee’s behaviour presents a risk of danger to him/herself or others. If it does, then the correct course of action will be to remove the employee from the situation.

In the absence of the implementation of mandatory provisions for drug and alcohol testing in the Act, employers may still carry out test for intoxicants where it is provided for in the following:

1. A company policy;
2. The employee’s contract; or
3. The Company has the express consent of the employee.

The HSA have recommended that where testing is part of a company policy or contracted with employees, it should be carried out in accordance with a recognised standard such as the European Laboratory Guidelines for Legally Defensible Workplace Drug Testing.

It appears from the facts of the question that you have good reason to carry out a test. If the test returns a positive result then your company policy, regarding drug testing, should address the procedure to be followed. This may be done by indicating that a positive result will be regarded as gross misconduct and may result in steps being taken in accordance with the company’s disciplinary procedures.

Generally speaking, if an employer has any doubt as to whether or not they can test an employee for intoxicants, legal advice should be sought.