When substance abuse and addiction are present in the workplace, what are the legal implications for employers and management? This is a question today’s employers are grappling with as evidence of workplace addiction becomes more prevalent. It is a question that needs to be answered sooner, rather than later, in order to protect a company from liability. Make no mistake ??? the law is very clear regarding employer responsibilities.
Understanding the legal responsibilities comes down to understanding how the following legislation applies to a given employer and its workplace:
- Misuse of Drugs Act 1971 ??? This Act of Parliament officially opened the door for fighting the use of illicit substances in the UK. It covers things such as drug manufacturing, distribution, possession, and use. Where employers are concerned, the legislation dictates that they MUST NOT allow their premises to be used for any illegal drug activity, no matter how minor.
- Health and Safety at Work etc. Act 1974 ??? Often referred to as HSWA, this legislation was established to define the general duties of employers, contractors, and workers in relation to workplace safety issues. In essence, HSWA requires employers to take all reasonable steps to insure a safe work environment for all employees and visitors.
- Road Traffic Act 1988 ??? The Road Traffic Act was originally implemented to establish legal limits for driving while under the influence of drugs and alcohol. Anyone found to be driving above those limits is guilty of an offence punishable by fines, loss of license, and potential prison time.
- Transport and Works Act 1992 ??? This legislation was put in place to guide the construction of transportation infrastructure including railways and harbours. The establishment of the law made it a crime for workers to be engaged in related construction activities when deemed unfit because of drug or alcohol use.
- Work in Compressed Air Regulations 1996 ??? Companies that handle compressed air in any way are regulated by this legislation in order to prevent accidents caused by workers using drugs and alcohol. The regulations are very strict about compressed air handling and exposure.
- Management of Health and Safety at Work Regulations 1999 ??? These regulations were put in place to enhance the original Health and Safety at Work etc. Act of 1974. It places additional burdens on employers to assess the risks of each employee and put measures in place to mitigate those risks.
The long and short of the matter is that employers have certain legal responsibilities where workplace substance abuse and addiction are concerned. They are legally required to take whatever steps necessary to ensure the safety of workers, customers and the public at large. A failure to take such measures opens a company to legal liabilities, including prosecution of management and ownership.
Personal and Business Liability
Whenever incidents occur related to drug abuse and addiction in the workplace, there is always the question of personal versus business liability. Who is liable for what? To what extent are those held liable punished or forced to make restitution? Knowing the answers to these questions goes a long way toward helping business owners and managers understand their legal responsibilities.
Personal liability is always assigned to the individual responsible for the incident in question. For example, a heavy equipment operator who causes a construction accident due to alcohol consumption will most certainly face prosecution. Whether or not his employer is also held responsible depends on circumstances.
If the investigation reveals the employer knew, or should have known, about the alleged addiction or substance abuse, prosecution is usually the result. Prosecution may not occur if an employer had no way of knowing substance abuse was taking place.
Consider that there is also the question of personal liability among managers. Case law is rife with instances of managers and supervisors being prosecuted for allowing workers to engage in workplace activities while using drugs and alcohol. Such prosecutions can result in all sorts of punishments.
The thing owners and managers need to understand is that personal versus business liability is a fine line that can be difficult to distinguish. Far better to do everything in one’s power to prevent problems rather than relying on this legal distinction for protection.
Legal issues relating to workplace substance abuse and addiction come down to whether or not employers are doing everything they can to ensure safety. Sometimes it is possible to make black and white decisions regarding legal liabilities. Other times, such judgements are left for the courts to determine. In either case, no employer is protected against legal liability without first doing everything within its power to comply with the law.
It is vital to the survival of an employer that executive staff regularly assess workplace policies and day-to-day practices to ensure the workplace is free of addiction and substance abuse problems. Where current policies are inadequate to address the requirements of the law, they need to be changed. Policies deemed sufficient and effective need to be implemented and practiced without fail.
- BMA ??? http://www.ias.org.uk/uploads/pdf/In%20the%20Workplace/U1IC6LL8K44P92F5HRQR5614CGFC51.pdf