NACD - MEP MIS



nacd

recommendations to government

in relation to workplace drug testing and the

Safety, Health and Welfare at Work Act (2005)

January 2007

Table of Contents

Acknowledgements i

Summary of Recommendations on Workplace Drug Testing (WDT) 1

The Regulations 1

NACD Brief 3

Introduction 3

1. Drug impairment in the workplace 7

What is the Workplace in Ireland? 7

What is the incidence of accidents and injuries among Irish Workers? 8

Age categories of victims in non-fatal accidents in workplace 10

Use of drugs and alcohol in Irish society 10

What evidence is there to support the belief that alcohol and drugs are being used /misused in the workplace? 12

Are accidents in the workplace caused by the misuse of illicit drugs? 14

How is impairment measured? Driving under the influence 15

Does Cannabis impair performance? 16

Does Ecstasy or Methadone impair performance? 16

Does WDT act as a deterrent to those who engage in problem drug use? 17

2. Right to privacy on health issues in the workplace 20

Does Workplace Drug Testing (WDT) infringe the privacy of workers? 20

Is bodily integrity violated by WDT? 20

Is the legislation proportionate? 21

What effect does the Equality Act have on WDT? 23

3. Information on drug (substance) use in the workplace 24

What constitutes a safety sensitive job? 24

4. Drug use/testing issues in the workplace 25

What is a drugs test? Types of tests 25

Workplace Drug Testing in Ireland 25

Is drug testing an effective measure of impairment? 28

False positives and false negatives 28

Fairness and welfare 30

Do alternatives to drug testing exist? 30

Could WDT lead to social exclusion? 31

Best practice for laboratories – UK and EU precedents 32

5. Best practice where drug testing is in place (such as Employment Assistance Programmes (EAPs). 34

The role of EAPs in prevention 34

Trade unions, employers and drugs policy 34

Are Employment Assistance Programmes effective? 36

Conclusion 37

Bibliography 38

Appendices 46

Appendix 1: European Laboratory Guidelines for Legally Defensible Workplace Drug Testing version 1.0, 2002 46

Appendix 2: Drug Cut-off Concentrations 50

Appendix 3: Summary conclusions of the Independent Inquiry into Drug Testing at Work 51

Figures and Tables

|Fig 1: Top five accident triggers for non-fatal injuries, all sectors, 2005 (HSA database) |9 |

|Table 1: Number of fatal incidents by economic sector 2000-2006 (HSA, 2006) |9 |

|Table 2: Average Size, Composition, Household Income and Expenditure 1999 - 2000: Gross Household Income Deciles |11 |

|Table 3. Drug testing, detection times and reliability adapted from IIDTW 2004 |28 |

|Table 4: Approximate detection times of alcohol and drugs |29 |

|Table 5: Comparison of Uses |30 |

Frequently used acronyms

DAIRU Drug and Alcohol Information and Research Unit within the Department of Health, Social Services and Public Safety in Northern Ireland

DOHC Department of Health and Children

DUID Driving Under the Influence of Drugs

EAO Employment Assistance Officer

EAP Employment Assistance Programme

ECHR European Convention on Human Rights

EMCDDA European Monitoring Centre for Drugs and Drug Addiction

EWDTS European Workplace Drug Testing Society

HSA Health and Safety Authority

IIDTW Independent Inquiry into Drug Testing at Work

NACD National Advisory Committee on Drugs

SHWW Safety, Health and Welfare at Work Act

WDT Workplace Drug Testing

WHO World Health Organisation

Acknowledgements

The NACD is grateful to Dr Teresa Whitaker (Researcher) for compiling this briefing. Special thanks are extended to Ms Una Molyneaux (former Research Assistant, NACD) who carried out the preliminary ground work on this issue and to Catherine Darmody who assisted in the production of this document.

Appreciation is extended to all those organisations and individuals who provided confidential and other information in the preparation of this briefing.

Finally, we are grateful to the Director, Ms Mairéad Lyons, for guiding the completion of the briefing.

Summary of Recommendations on Workplace Drug Testing (WDT)

Recent changes to the Safety, Health and Welfare at Work (SHWW) Act 2005 require that regulations be drafted to support the changes in Section 13 of the Act which refers to Workplace Drug Testing (WDT). The NACD has reviewed the relevant literature and having applied the collective expertise of its membership concludes the following:

• There is little evidence available in Ireland on the extent to which alcohol and drugs are involved in workplace injuries and accidents. Most of the evidence points in the direction of unsafe environments, carelessness at work, fatigue and stress.

• However, it is clear that the use of/problematic use of substances (alcohol and drugs) can lead to poor performance and conduct behaviour difficulties which might compromise safety.

• All workplaces should have a substance use policy in place that provides for education, support and access to treatment in the first instance. Such policies should provide for drug testing in the workplace if appropriate.

The Regulations

1. Regulations should be very specific in how impairment in the workplace can be determined to such an extent that they merit the application of a drug testing procedure. Regulations must specify what personnel will be skilled in this area which should involve accredited training. These procedures must be made clear in organisational policies to all employees in new and ongoing employment. Industrial relations issues such as fairness, welfare, transparency, social justice and social exclusion all need to be addressed.

2. The right to privacy of the individual is a competing right with the goal of the legislation and regulations must be specific in how this right is interpreted in the context of the common good. Such regulations would consider the requesting procedure (informed consent) for a drug test: who carries this out, who receives the results, and how that information is returned to the employer.

3. The workplace is a setting in which health promotion activities have taken place in relation to other issues such as heart disease, smoking and obesity. Health education messages about problem alcohol and drug use are important because many adults may not have been previously exposed to such messages and ongoing reinforcement is desirable.

4. There is a need to address the critical areas of testing procedures, laboratory protocols and accreditation, to ensure quality in the process. Some EU guidelines have been developed and the growth in commercial laboratories in Ireland requires that this be given urgent attention. Of particular importance is establishing what levels of the presence of a substance are acceptable or unacceptable and whether these levels can be proven to interfere with performance. The question is raised: Can the substance use be isolated to a specific time period in which attendance at work would mean the person is intoxicated whilst at work?

5. Workplace drug testing (WDT) should be in the context of best practice in human resource (HR) management. Many problems manifested by those who regularly use or misuse substances can be identified early (such as poor attendance and deterioration in work performance and in relationships with colleagues leading to isolation within the workplace). These problems can be addressed through good HR practice and procedure. The provision of internal or external Employee Assistance Programmes in workplaces is a valuable step in supporting employees. Substance use may be related to the work environment, to increasing pressures, workload stresses and relationship stresses. Thus, there is a responsibility on the part of the employer to support the employee through good Human Resources policy.

Finally, the NACD recommends that employers review their HR policies and practices in order to identify areas where safety is critical and where being under the influence of an intoxicant is in fact a hazard to public, personal and fellow employee health and safety. The current EU Action Plan on Drugs raises the issue of Drug Use in the Workplace and it is becoming an area of interest for the EU Drugs Agency, the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).

The enclosed briefing provides additional information to support the views expressed here.

NACD Brief

The SHWW Act has been passed by the Oireachtas and regulations will be developed to support the implementation of the Act, particularly in the area of working while under the influence of an intoxicant, with related provisions for testing of workers.

The NACD requires information on the following topics:

1. drug impairment in the workplace

2. right to privacy on health issues in the workplace

3. information on drug (substance) use in the workplace

4. drug use/testing issues in the workplace

5. best practice where drug testing is in place (such as Employment Assistance Programmes).

Introduction

The Safety, Health and Welfare at Work Act 2005 (SHWW) was enacted in Ireland in June 2005. Most of the new Act incorporates what was contained in the older ‘SHWW Act 89’ and ‘General Application Regulations of 1993/2003’, but very important changes and additions have occurred. The new legislation gives more responsibilities to managers and is directed towards preventing accidents in the workplace (AMR Human Resources, 2006). Part two of the Act contains duties of the employer:

8.—(1) Every employer shall ensure, so far as is reasonably practicable,

the safety, health and welfare at work of his or her employees.

(2) Without prejudice to the generality of subsection (1), the

employer’s duty extends, in particular, to the following:

(a) managing and conducting work activities in such a way as

to ensure, so far as is reasonably practicable, the safety,

health and welfare at work of his or her employees;

(b) managing and conducting work activities in such a way as

to prevent, so far as is reasonably practicable, any

improper conduct or behaviour likely to put the safety,

health or welfare at work of his or her employees at risk;

Schedule 3 directs employers to develop a prevention policy and to provide appropriate training and instructions to employees.

8. The development of an adequate prevention policy in relation

to safety, health and welfare at work, which takes account of technology,

organisation of work, working conditions, social factors and

the influence of factors related to the working environment.

9. The giving of appropriate training and instructions to

employees.

In Chapter 2, Section 13, the Act contains duties of employees in relation to appropriate behaviour in the workplace: employees should not be under the influence of an intoxicant defined as drugs or alcohol and any combination of drugs and alcohol.

General Duties of Employee and Persons in Control of Places of

Work

13.—(1) An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate,

and take reasonable care to protect his or her

safety, health and welfare and the safety, health and welfare

of any other person who may be affected by the

employee’s acts or omissions at work,

(b) ensure that he or she is not under the influence of an

intoxicant to the extent that he or she is in such a state

as to endanger his or her own safety, health or welfare at

work or that of any other person,

(c) 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,

(d) co-operate with his or her employer or any other person

so far as is necessary to enable his or her employer or

the other person to comply with the relevant statutory

provisions, as appropriate,

(e) not engage in improper conduct or other behaviour that is

likely to endanger his or her own safety, health and welfare at

work or that of any other person,

Employees also have a duty to inform their employer if they suffer from an impairment which might affect the safety of their work.

(4) If an employee referred to in subsection (1) becomes aware

that he or she is suffering from any disease or physical or mental

impairment which, should he or she perform a work activity referred

to in subsection (2), would be likely to cause him or her to expose

himself or herself or another person to danger or risk of danger, he

or she shall immediately notify the employer concerned or a registered

medical practitioner nominated by that employer who shall in

turn notify the employer.

Other relevant parts of the Act, include s.23(3)which states:

(3) Where, following an assessment under subsection (1), a registered

medical practitioner is of the opinion that an employee is unfit

to perform work activities referred to in subsection (2), he or she

shall notify the employer, by the quickest practicable means, of that

opinion and the likelihood of early resumption of work for rehabilitative

purposes and shall inform the employee accordingly, giving

the reasons for that opinion.

The issue of health surveillance is also included in s.22 of the Act.

Every employer shall ensure that health surveillance appropriate to the risks to safety, health and welfare that may be incurred at the place of work identified by a risk assessment, under s.19 [of the 2005 Act] is made available to his or her employees.

Schedule 7 of the Regulations states: The Minister may make regulations under Section 58 for, or in respect of, any matters including the following:

(4) requirements to be imposed on an employee in relation to conduct or behaviour likely to endanger his or her own safety, health and welfare at work or that of any other person including as regards intoxication and submission to reasonable and proportionate tests;

It is argued that Section 22, which addresses the health “surveillance” issue, could be used as further justification for drug and alcohol testing of employees who are working in highly stressful occupations. For example, stock broker firms in London train their Human Resource managers to look for signs of cocaine abuse among staff, due to the highly stressful conditions of their work (Doran, 2006:37). The key words “serious risks” could also provide justification to employers for drug testing in occupations like operating machinery or working from heights. Section 8(2) of the Act gives the employer the obligation to ensure that the workplace has “facilities and arrangements for the welfare of his or her employees at work” which could imply that an employer should make available a counselling or employment assistance service (O’Sullivan, 2006).

The new Act extends the duty of the employer not to expose the employee to any danger that s/he may be aware of, by failing to monitor and test an employee who was intoxicated and was involved in an accident (Doran, 2006). A worker who reports to work in such condition may be removed from the workplace by the employer. If an intoxicated employee is involved in a safety incident at work, an employer may find themselves in breach of the SHWW Act, therefore it is incumbent upon employers to develop policies and procedures for the education, treatment and rehabilitation of employees whose behaviour presents risks to self or to others at work (Quinlan, 2006).

The Minister of State at the Department of Enterprise, Trade and Employment, Mr. Killeen stated that it was within the context of modernising Irish occupational health and safety laws that the government was enacting the SHWW Act. Over the past 25 years occupational safety and health have been significant elements of social policy in the European Union. Since the framework directive on safety and health was adopted in 1989, a considerable range of directives have been put in place to cover particular employment sectors or risk groups. All these directives have been implemented in Irish law under the auspices of the 1989 Act. The Health and Safety Authority were given the task of reviewing the 1989 Act. The majority of their recommendations were addressed in the Act (Parliamentary Debates, 2004). The Minister noted that surveys undertaken by the Health and Safety Authority in 2003 reveal that while 90% of companies employing more than 50 persons had a safety statement, this falls to 56% in companies employing up to 50 persons. He stated that the safety statement is the essential management tool for managing safety and health at work. (Parliamentary Debates, 2004).

In order to put the legislation into a societal context, this paper will begin by describing the workplace in Ireland and the incidence of accidents and injuries among Irish workers. It will then examine the evidence on whether drugs and alcohol are an issue in the Irish workplace and whether drug testing can measure impairment. Legal issues such as a worker’s right to privacy are explored. EU regulations governing laboratory testing are explicated and best practices such as Employee Assistance Programmes (EAPs) are discussed.

Drug impairment in the workplace

What is the Workplace in Ireland?

The Irish workplace employs a heterogeneous mix of people in a variety of areas which are categorised by the Central Statistics Office into economic sectors. In March to May of 2006 the numbers employed in each sector were as follows: Agriculture, Forestry and Fishing (114,500); Other Production Industries (288,500); Construction (262,700); Wholesale and Retail Trade (284,400); Hotels and Restaurants (116,300); Transport, Storage and Communication (120,700); Financial and Other Business Services (267,300); Public Administration and Defence (105,100); Education (135,600); Health (201,200) and Other Services (120,600). Since the late 1950s the Irish Government has sought to attract foreign investment into Ireland. Over 1000 overseas companies have established operations in Ireland. They employ 130,000 people directly and many more indirectly. They account for one-quarter of Gross Domestic Product (GDP) and over 80% of exports (Industrial Development Authority, 2006). Drug testing in the workplace is commonplace in large companies in the United States of America (Hartwell et al., 1996). There are over 600 US firms in Ireland and in 2001 the gross product of U.S. affiliates totalled $16.5 billion, which accounted for around 16% of Ireland’s total GDP (American Chamber of Commerce Ireland, 2006). These multinational companies typically have three types of employees: (1) expatriate employees from the parent company; (2) local employees; and (3) employees of a third country (immigrants). Any of these employees could have alcohol or drug-related problems (WHO, 1993) and some multinational companies carry out drug testing.

Farming is still an important economic sector in Ireland. The Census of Agriculture taken in 2000 revealed that there were 141,527 active farms in Ireland, with a workforce of 257,947, made up of holder (56%), spouse (21%), other family members (15%), regular non-family (4%) and casual labour (3%). Although the numbers have decreased significantly in the past six years, nevertheless they do indicate that the majority of farms are run by family labour, thus blurring the relationship between employee and family member.

In addition, there are 777,000 people employed in small businesses in Ireland representing more than half of the total private-sector, non-agricultural workforce. Over 97 per cent of businesses operating in Ireland today are small in that they employ fewer than 50 people. Small businesses represented 39% of the Irish Labour Force in 2005 (Report of the Small Business Forum, 2006). In the decade between 1992 and 2002, the majority (85%) of Irish companies employed fewer than 10 people (Health and Safety Authority (HSA), 2005). There are also many workers who work from home or in the informal sector.

The variety and heterogeneity of ‘workplaces’ raises the questions: In what sectors do accidents occur? What is the incidence of accidents and injuries among Irish workers?

What is the incidence of accidents and injuries among Irish Workers?

Between the years 2000 and 2005, an average of 65 deaths occurred in the workplace in Ireland (Table 1: Health and Safety Authority (HSA), 2006). Compared to deaths on the road and suicides, the number of fatalities in the workplace is low. The two economic sectors reporting the greatest number of fatalities are the Agriculture, Hunting & Forestry sector and the Construction sector. In 2005, a total of 64 workers and 9 non-workers were killed in workplace incidents, of whom, 41 were employees, 19 were self-employed (working in the agricultural, construction, wholesale and retail trade, and transport and storage sectors) 4 were family workers (3 in agriculture and 1 in construction).

Most fatal incidents are due to victims being trapped or crushed by an object or machinery (14 fatalities), injuries from falling/moving/flying objects (12 fatalities), falls from a height (10 fatalities) and injuries by vehicles in the workplace (9 fatalities). These four incident types account for nearly 63% of fatalities in 2005. Most of the trapped/crushed fatalities occurred in the Mining and Quarrying (4 fatalities), Agriculture (3 fatalities), and Construction (3 fatalities) sectors. Most of the falls from a height occurred in the Construction sector (6 out of 10 falls). All 4 of the fatalities caused by contact with electricity also occurred in the Construction sector (HSA, 2006).

Up to the 14th September 2006, 15 people were killed in the Agriculture Hunting and Forestry sector whereas 9 people were killed in the Construction sector. As a percentage the greatest number of fatalities occurred in the Agriculture, Hunting and Forestry sector (14.7%) in 2005; 8.3% were killed in the Construction sector. So far, in 2006 the greatest number of deaths has occurred in Cork (9); Dublin accounted for one death. The numbers fluctuate as the following table reveals. Only the four sectors reporting the greatest number of fatalities are included.

Table 1: Number of fatal incidents by economic sector 2000-2006 (HSA, 2006)

|Economic Sector |2000 |2001 |2002 |2003 |2004 |2005 |2006 |

| | | | | | | |(14 Sept) |

|Agriculture, hunting and forestry |16 |25 |14 |20 |13 |18 |15 |

|Construction |17 |22 |21 |20 |16 |23 | 9 |

|Mining and Quarrying | 3 | 5 | 3 | 1 | 0 | 6 | 2 |

|Wholesale/retail trade; repair of | 2 | 1 | 1 | 4 | 4 | 8 | 1 |

|goods | | | | | | | |

|Other sectors* |32 |14 |22 |23 |17 |18 |13 |

|Total |70 |67 |61 |68 |50 |73 |40 |

*Other sectors include: Fishing, Manufacturing, Electricity/gas/water, Hotels and Restaurants, Transport, storage and communication, Financial intermediation, Real Estate, Public Admin, Education, Health/social work and Other community, social and personal services).

In 2005, the Construction sector had many more injures (12,600) than any other sector as well as the highest injury rate (54 in every 1,000 workers) and the highest rate of more than three days lost for injuries in the workplace. In terms of total injuries, the Construction sector, the Agricultural and Fishing sectors and the Hotel and Restaurant sector feature high injury rates compared to the Financial and Business, and Education sectors (HSA, 2006).

The top five accident triggers for non-fatal injuries in all sectors in 2005 were: Manual handling triggers (32%); Slips, trips, fall on level (15%); Other movement by injured person (8%); Shock, fright, violence of others (6%); Fall, collapse, breakage of material (6%); All other triggers (33%).

Fig 1: Top five accident triggers for non-fatal injuries, all sectors, 2005 (HSA database)

All other triggers (33%) include loss of control of an object, animal, machine or vehicle, fall from a height, overflow/leakage/emission, entered inappropriate area, electric failure, fire and explosion (HSA, 2006).

Age categories of victims in non-fatal accidents in workplace

Based on 8,000 reported accidents in 2005, the Health and Safety Authority calculated the age of victims (who were more than three consecutive days absent from work) in non-fatal accidents in the workplace. The highest percentage (32%) was those in the 25-34 year-old age group, 3% were in the age category (15-19), 13% (20-24), 16% (25-29), 16 % (30-34); 14 % (35-39), 12 % (40-44), 10 % (45-49), 8% (50-54), 5% (55-59) and 3% (60-64). The most common type of injury was sprains and strains (41%), bruising, grazes and bites (17%), closed fracture (13%), open wounds (12%), and all other injuries (17%). Having explored available information on the composition of the Irish workplace and on the incidence of accidents and fatalities, the following sections will explore issues related to the use of drugs and alcohol in Irish society.

Use of drugs and alcohol in Irish society

Current statistics indicate that illicit drug use is an everyday occurrence for a minority of Irish people. A representative national survey on illicit drug use conducted in Ireland in 2002/2003 revealed that 19% of persons over the age of 15 reported ever taking an illicit drug, 5.6% used illicit drugs in the past year, and 3% reported taking them in the past month. Cannabis was the most commonly used illegal drug: 17% had ever used cannabis, 5% had used cannabis in the last year and 2.6% used cannabis in the last month. For all other illegal drugs lifetime prevalence rates were 4% or less. The most commonly ever used were ecstasy (4%), magic mushroom (4%), LSD and poppers (each 3%), amphetamines (3%), cocaine (3%), solvents (2%), heroin (0.5%) and crack (0.3%). Older people (55-64) reported highest lifetime prevalence (30%) of sedative, tranquilliser and anti-depressant use. Women reported higher lifetime prevalence rates for sedatives, tranquillisers, and anti-depressants than men (15% compared to 9%) and for other opiates (4% compared to 2%) (NACD & DAIRU, 2005). There are an estimated 14,000 opiate users in Ireland (Kelly, Carvalho et al. 2004). In Ireland, illegal or controlled drugs are prohibited under a number of different Acts. The Medical Preparations (Control of Amphetamines) Regulations 1970 prohibits amphetamine (‘speed’) type drugs without prescription. The Misuse of Drugs Acts 1977 and 1984 are directed towards preventing the non-medical use of drugs; they prohibit the non-medical use of opiates such as heroin, sedatives and stimulants (Corrigan 2003).

Although illicit drugs are used by a minority of Irish people, the majority of Irish adults consume alcohol. In March 2004, Eurostat, (European Union's statistics service) reported that 52% of the population drank alcohol regularly in 1999 in Ireland, compared with 25% for the EU average. Denmark and the United Kingdom (both 44%) and the Netherlands (43%) also recorded high percentages, while the lowest were observed in Italy (12%) and Spain (19%) (Finfacts Ireland, 2006).

According to World Drink Trends 2004, Ireland is in third place in the world alcohol consumption league. Luxembourg heads the rankings. The World Health Organization states that Ireland's per capita litre consumption has increased from 7.0 in 1970 to 14.5 in 2001. This compares with 23.2 for France in 1970 down to 13.5 in 2001.  Ireland's pub culture is reflected in the high percentage of draught beer (beer on tap) which is consumed, compared with other countries. Irish people are also spending more on alcohol. The average weekly household expenditure on alcoholic drink and tobacco increased from £23.85 of average weekly household expenditure to £34.73 representing a 45% increase (Household Budget Survey, 1999-2000: 6). Households in urban areas spent most. As a proportion of total household expenditure, urban householders spent 8% of average weekly expenditure on alcohol and tobacco.

Table 2 – Average Size, Composition, Household Income and Expenditure 1999 - 2000: Gross Household Income Deciles

|Item Description |1st |2nd |3rd |4th |5th |

| |Decile |Decile |Decile |Decile |Decile |

| | ................
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