Drugs and alcohol in the workplace affect workplace health, safety, and productivity. The use of illicit drugs and/or alcohol in the workplace could easily result in an employee being a danger to themselves or other colleagues they work with.
Around 5% of all Australian workplace deaths, and 11% of workplace injuries, involve alcohol.
In this article we take a look at:
- How employers can manage drugs and alcohol in the workplace,
- Whether an employee can claim if they are injured while under the influence of drugs and/or alcohol.
- The rights to claim of those who are injured by a colleague who is under the influence of drugs and/or alcohol
1. How Can Employers Manage Drugs and Alcohol?
Employers have a primary duty to keep their employees safe from injury. They must, as far as is reasonably practicable, ensure the health and safety of their employees while they are at work. They therefore have a duty to manage drugs and alcohol in the workplace. Some places of employment attempt to manage drugs in the workplace by adopting random drug testing. While some workplaces require their employees to undergo such testing, there are certain industries and occupations that are more likely, or are required, to have such testing in place.
These industries and occupations include:
- Rail safety workers;
- Passenger transport workers;
- Heavy vehicle drivers;
- Mining industry workers;
- Construction industry workers;
- Aviation industry workers.
For those industries that do not have drug testing in place, it is important for them to adopt a drug and alcohol policy that their employees must follow. This will assist employers in managing the work-related risks associated with drugs and alcohol. The policies will also set out, and make employees aware of the rights and responsibilities surrounding drugs and alcohol in the workplace.
2. Can Employees Claim for Injury if They are Under the Influence?
Employees who are in breach of their employer’s drug and alcohol policy may be subjected to disciplinary action or termination by their employer. Furthermore, if they injure themselves while under the influence they may also lose their right to workers compensation payments. The Workers Compensation and Rehabilitation Act 2003 states that compensation is payable for an injury sustained by a worker, that is caused by the worker’s serious and wilful misconduct, only if:
- The injury results in death; or
- The insurer considers that the injury could result in a degree of permanent impairment (DPI) of 50% or more.
Being under the influence of drugs or alcohol is likely to be considered serious and wilful misconduct. Therefore an employee who injures themselves while in this condition, and sustains less than a 50% DPI, will be unable to claim workers compensation benefits for their injury. This will also mean that this employee has lost their right to bring a common law claim for damages against their employer. Losing their right to receive workers compensation benefits will see that employee personally incur the costs of treatment and rehabilitation for the injury themselves.
For those injured while under the influence that have sustained a DPI of 50% or more and are receiving statutory benefits, their damages recoverable under a common law claim against their employer may also be affected. Providing negligence can be established against their employer for their injury this employee may also be found to be partially responsible for their own injury due to the condition they were in at the time the accident occurred. If this is the case then their damages will be reduced by the same percentage they were found to have contributed to their own injury.
3. Can an Employee Claim Against Co-workers Under the Influence?
An employer is also vicariously liable for the acts of its employees, including those who have caused injury to another employee. Depending on the circumstances of how the injury occurred, an employee may be able to bring a common law claim for damages against their employer if they were injured as a result of the actions of a colleague who was under the influence of drugs and/or alcohol.
Who is Responsible?
Drugs, alcohol, and other substance misuse is everyone’s responsibility when it comes to the workplace. An employer has a duty of care to manage drugs and alcohol and remove health and safety hazards in the workplace. They may do this by having in place random drug testing or utilising a drug and alcohol policy.
Employees too have a duty to follow these procedures and policies and not to cause harm to others in the workplace. If an employee injures themselves at work while under the influence of illicit drugs or alcohol they may lose their right to not only receive statutory benefits, but also to bring a common law claim against their employer.
Employers can be held vicariously liable for the actions of their employees. Therefore, a claim for damages could be brought against them for an injury sustained by an employee as a result of another employee being under the influence of drugs/alcohol. Everyone in the workplace has health and safety responsibilities to ensure their own safety and the safety of those around them.