Is your worker often late, irritable, lacking energy or unable to concentrate on work. Do they have bloodshot eyes? Any of these symptoms may show the worker is coming to work under the influence of drugs or alcohol. This will mean lack of productivity and risk of injury to the worker or other workers on the farm.
Safety in the Workplace
Under the Health and Safety in Employment Act 1992 you are legally required to take all practicable steps to ensure the safety of your workers while they are at work. Having a worker who is under the influence of drugs or alcohol is a big safety risk and could mean you will be charged by the Labour Department if an accident happens. You can’t just let it go. It is costing you money in lost productivity every time it happens and could land you with a big fine if there is an accident.
Dealing with the Problem
How can you be sure the problem is caused by drugs or alcohol? If your suspicions are correct, what can you do? Depending what you want to achieve, there are two choices.
If you want to keep the worker, then deal with it informally - talk to them, tell them you think they have been coming to work under the influence of drugs or alcohol and make it clear you won’t accept this happening again. You might consider giving the employee assistance by way of education or rehabilitation
If you want to sack the worker or discipline them in some way, it is very important that you follow a fair process to get to the result you want.
Follow a Fair Process
If you have a process set out in the employment agreement with the worker or if your farm has a drug and alcohol policy with a process in it, this makes it much easier provided you follow that process fairly.
A Drug and Alcohol Policy
If you haven’t already got a drug and alcohol policy for your farm, I recommend you put one in. You will need to discuss it with your workers before putting the policy in place. A good drug and alcohol policy should set out the aims of the policy; the process that is going to be followed and any how prevention, education or assistance that is going to be provided as well as clearly setting out the rules and what will happen if the worker breaks the rules. For example, the policy can set out what factors you may take into account when deciding whether to test a worker to see whether they are under the influence of drugs or alcohol.
Drug and/or Alcohol Testing
Your right to test workers for drugs or alcohol to make sure your farm is a safe workplace must be balanced against your workers’ rights to refuse to have a medical procedure. Employers are entitled to test for drugs and alcohol in the following circumstances:
- As a pre-employment requirement
- When the employer has reasonable cause to suspect that the worker may be affected by drugs or alcohol
- After an accident or incident
- Random testing where the work place is “safety sensitive” (A farm would fall within this category as a consequence of the work with livestock, vehicles, machinery and dangerous substances)
- If a worker is being transferred from a work place that is not safety sensitive, to one that is safety sensitive
- Where a worker is undergoing education or rehabilitation following a positive test, a further test or tests can be done before the worker returns to work.
You will need to obtain your worker’s consent before they have a test. You can’t force an employee to take a drug or alcohol test. However, as noted above, if you have a drug and alcohol policy in place the worker’s refusal to have a test can be a factor you can take into account when making a decision about dismissal or not. You will need to engage a registered testing consultant to undertake the tests and the results must remain confidential to you, the worker and the testing agent.
Get Advice
Before taking any of the steps outlined above it is a very good idea to get advice from a specialist employment lawyer. They will help you develop a drug and alcohol policy that fits your farm, will ensure that your employment agreements are right for your farm and will make sure that you follow a fair process when you are dealing with a worker with a suspected drug or alcohol issue. This is the best thing to do to make sure you are protected as far as possible from claims by your workers.
Please email me at [email protected] with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.
Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.