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Wednesday, 23 February 2011 00:12

Case Study: Drugs and Alcohol in the Workplace - Ethical Considerations

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The management of alcohol and drug problems in the workplace can pose ethical dilemmas for an employer. What course of conduct an employer takes involves a balancing of considerations with respect to individuals who have alcohol and drug abuse problems with the obligation to correctly manage the shareholder’s financial resources and safeguard the safety of other workers.

Although in a number of cases both preventive and remedial measures can be of mutual interest to the workers and the employer, in other situations what may be advanced by the employer as good for the worker’s health and well-being may be viewed by workers as a significant restriction on individual freedom. Also, employer actions taken because of concerns about safety and productivity may be viewed as unnecessary, ineffective and an unwarranted invasion of privacy.

Right to Privacy at Work

Workers consider privacy to be a fundamental right. It is a legal right in some countries, but one which, however, is interpreted flexibly according to the needs of the employer to ensure, inter alia, a safe, healthy and productive workforce, and to ensure that a company’s products or services are not dangerous to consumers and the public at large.

The use of alcohol or drugs is normally done in a worker’s free time and off-premises. In the case of alcohol, it can also occur on-premises if this is allowed by local law. Any intrusion by the employer with respect to the worker’s use of alcohol or drugs should be justified by a compelling reason, and should take place by the least intrusive method if costs are roughly comparable.

Two types of employer practices designed to identify alcohol and drug users among job applicants and workers have aroused strong controversy: testing of bodily substances (breath, blood, urine) for alcohol or drugs, and oral or written inquiries into present and past alcohol or drug use. Other methods of identification such as observation and monitoring, and computer-based performance testing, have also raised issues of concern.

Testing of Bodily Substances

The testing of bodily substances is perhaps the most controversial of all methods of identification. For alcohol, this normally involves using a breathalyser device or taking a blood sample. For drugs, the most widespread practice is urinalysis.

Employers argue that testing is useful to promote safety and prevent liability for accidents; to determine medical fitness for work; to enhance productivity; to reduce absenteeism and tardiness; to control health costs; to promote confidence among the public that a company’s products or services are being produced or delivered safely and properly, to prevent embarrassment to the employer’s image, to identify and rehabilitate workers, to prevent theft and to discourage illegal or socially unbecoming conduct by workers.

Workers argue that testing is objectionable because taking samples of bodily substances is very invasive of privacy; that the procedures of taking samples of bodily substances can be humiliating and degrading, particularly if one must produce a urine sample under the watchful eye of a controller to prevent cheating; that such testing is an inefficient way to promote safety or health; and that better prevention efforts, more attentive supervision and the introduction of employee assistance programmes are more efficient ways to promote safety and health.

Other arguments against screening include that testing for drugs (as opposed to alcohol) does not give an indication of current impairment, but only prior use, and therefore is not indicative of an individual’s present ability to perform the job; that testing, particularly drug testing, requires sophisticated procedures; that in case such procedures are not observed, misidentification having dramatic and unfair job consequences may occur; and that such testing can create morale problems between management and labour and an atmosphere of distrust.

Others argue that testing is designed to identify behaviour that is morally unacceptable to the employer, and that there is no persuasive empirical basis that many workplaces have alcohol or drug problems that require pre-employment, random or periodic screening, which constitute severe intrusions into a worker’s privacy because these forms of testing are done in the absence of reasonable suspicion. It has also been asserted that testing for illegal drugs is tantamount to the employer assuming a law enforcement role which is not the vocation or role of an employer.

Some European countries, including Sweden, Norway, the Netherlands and the United Kingdom, allow alcohol and drug testing, although usually in narrowly defined circumstances. For example, in many European countries statutes exist which allow the police to test workers engaged in road, aviation, rail and sea transport, normally based on reasonable suspicion of intoxication on the job. In the private sector, testing has also been reported to occur, but it is usually on the basis of reasonable suspicion of intoxication on the job, in post-accident or post-incident circumstances. Some pre-employment testing and, in very limited cases, periodic or random testing, has been reported in the context of safety-sensitive positions. However, random testing is relatively rare in European countries.

In the United States, different standards apply depending on whether alcohol and drug testing is carried out by the public- or private-sector establishments. Testing conducted by the government or by companies pursuant to legal regulation must satisfy constitutional requirements against unreasonable state action. This has led the courts to allow testing only for safety- and security-sensitive jobs, but to allow virtually all types of testing including pre-employment, reasonable cause, periodic, post-incident or post-accident, and random testing. There is no requirement that the employer demonstrate a reasonable suspicion of drug abuse in a given enterprise or administrative unit, or on the basis of individual use, before engaging in testing. This has led some observers to claim such an approach is unethical because there is no requirement for the demonstration of even a reasonable suspicion of a problem at the enterprise or individual level before any type of testing, including random screening, occurs.

In the private sector, there are no federal constitutional restrictions on testing, although a small number of American states have some procedural and substantive legal restrictions on drug testing. In most American states, however, there are few if any legal restrictions on alcohol and drug testing by private employers and it is performed on an unprecedented scale compared to European private employers, who test principally for reasons of safety.

Inquiries or Questionnaires

Although less intrusive than testing of bodily substances, employer inquiries or questionnaires designed to elicit prior and current use of alcohol and drugs are invasive of workers’ privacy and irrelevant to the requirements of most jobs. Australia, Canada, a number of European countries, and the United States have privacy laws applicable to the public and/or private sectors which require that inquiries or questionnaires be directly relevant to the job in question. In most cases, these laws do not explicitly restrict inquiries about substance abuse, although in Denmark, for example, it is prohibited to collect and store information about excessive use of intoxicants. Similarly, in Norway and Sweden, alcohol and drug abuse are characterized as sensitive data which in principle cannot be collected unless deemed necessary for specific reasons and approved by the data inspectorate authority.

In Germany, the employer can ask questions only to judge the abilities and competence of the candidate with regard to the job in question. A job applicant may answer untruthfully to inquiries of a personal character that are irrelevant. For example, it has been held by court decision that a woman can legally answer that she is not pregnant when in fact she is. Such privacy issues are judicially decided on a case-by-case basis, and whether one could answer untruthfully about one’s present or prior alcohol or drug consumption would probably depend on whether such inquiries were reasonably relevant to performance of the job in question.

Observation and Monitoring

Observation and monitoring are the traditional methods of detection of alcohol and drug problems in the workplace. Simply put, if a worker shows clear signs of intoxication or its after-effects, then he or she can be identified on the basis of such behaviour by the person’s supervisor. This reliance on management supervision to detect alcohol and drug problems is the most widespread, the least controversial and the most favoured by workers’ representatives. The doctrine that holds that treatment of alcohol and drug problems has a higher chance of success if it is based on early intervention, however, raises an ethical issue. In applying such an approach to observation and monitoring, supervisors might be tempted to note signs of ambiguous behaviour or decreased work performance, and speculate about a worker’s private alcohol or drug use. Such minute observation combined with a certain degree of speculation could be characterized as unethical, and supervisors should confine themselves to instances where a worker is clearly under the influence, and hence cannot function in the job at an acceptable level of performance.

The other question that arises is what a supervisor should do when a worker shows clear signs of intoxication. A number of commentators previously felt that the worker should be confronted by the supervisor, who should play a direct role in assisting the worker. However, most observers currently are of the view that such confrontation can be counterproductive and possibly aggravate a worker’s alcohol or drug problems, and that the worker should be referred to an appropriate health service for assessment and, if required, counselling, treatment and rehabilitation.

Computer-Based Performance Tests

Some commentators have suggested computer-based performance tests as an alternative method of detecting workers under the influence of alcohol or drugs at work. It has been argued that such tests are superior to other identification alternatives because they measure current impairment rather than previous use, they are more dignified and less intrusive of personal privacy, and persons can be identified as impaired for any reason, for example, lack of sleep, illness, or alcohol or drug intoxication. The main objection is that technically these tests may not accurately measure the job skills that they purport to measure, that they may not detect low amounts of alcohol and drugs which could potentially affect performance, and that the most sensitive and accurate tests are also those which are the most costly and difficult to set up and administer.

Ethical Issues in Choosing between Discipline and Treatment

One of the most difficult issues for an employer is when discipline should be imposed as a response to an incident of alcohol or drug use at work; when counselling, treatment and rehabilitation should be the appropriate response; and under what circumstances both alternatives—discipline and treatment—should be undertaken concurrently. Bound up in this is the question as to whether alcohol and drug use is essentially behavioural in nature, or an illness. The view that is advanced here is that alcohol and drug use is essentially behavioural in nature, but that consumption of inappropriate quantities over a period of time can lead to a condition of dependence which can be characterized as an illness.

From the employer’s point of view, it is conduct—the worker’s job performance—that is of primary interest. An employer has the right and, in certain circumstances where the worker’s misconduct has implications for the safety, health or economic well-being of others, the duty to impose disciplinary sanctions. Being under the influence of alcohol or drugs at work can be correctly characterized as misconduct, and such a situation can be characterized as serious misconduct if the person occupies a safety-sensitive position. However, a person experiencing problems at work connected to alcohol or drugs may also have a health problem.

For ordinary misconduct involving alcohol or drugs, an employer should offer the worker assistance to determine if the person has a health problem. The decision to refuse an offer of assistance may be a legitimate choice for workers who may choose not to expose their health problems to the employer, or who may not have a health problem at all. Depending on the circumstances, the employer may wish to impose a disciplinary sanction as well.

The response of an employer to a situation involving serious misconduct connected with alcohol or drugs, such as being under the influence of alcohol or drugs in a safety-sensitive position, should probably be different. Here the employer is confronted with both the ethical duty to maintain safety for other workers and the public at large, and the ethical obligation to be fair to the worker concerned. In such a situation, the employer’s principal ethical concern should be to safeguard public safety and immediately remove the worker from the job. Even in the case of such serious misconduct, the employer should assist the worker to obtain health care as appropriate.

Ethical Issues in Counselling, Treatment and Rehabilitation

Ethical issues can also arise with regard to assistance extended to workers. The initial problem that can arise is one of assessment and referral. Such services may be undertaken by the occupational health service in an establishment, by a health care provider associated with an employee assistance programme, or by the worker’s personal physician. If none of the above possibilities exists, an employer may need to identify professionals who specialize in alcohol and drug counselling, treatment and rehabilitation, and suggest that the worker contact one of them for assessment and referral, if necessary.

An employer should also make attempts to reasonably accommodate a worker during absence for treatment. Paid sick leave and other types of appropriate leave should be put at the disposition of the worker to the extent possible for in-patient treatment. If out-patient treatment requires adjustments to the person’s work schedule or transfer to part-time status, then an employer should make reasonable accommodation to such requests, particularly as the individual’s continued presence in the workforce may be a stabilizing factor in recovery. The employer should also be supportive and monitor the worker’s performance. To the extent that the working environment may have contributed initially to the alcohol or drug problem, the employer should make appropriate changes in the working environment. If this is not possible or practical, the employer should consider transferring the worker to another position with reasonable retraining if necessary.

One difficult ethical question which arises is to what extent an employer should continue to support a worker who is absent from work for health reasons due to alcohol and drug problems, and at what stage an employer should dismiss such a worker for reasons of illness. As a guiding principle, an employer should treat absence from work associated with alcohol and drug problems as any absence from work for health reasons, and the same considerations that apply to any dismissal for reasons of health should also be applicable to dismissal for absence due to alcohol and drug problems. Moreover, employers should keep in mind that relapse can occur and is, in fact, part of a process towards complete recovery.

Ethical Issues in Dealing with Illegal Drug Users

An employer is faced with difficult ethical choices when dealing with a worker who uses, or who in the past has used, illegal drugs. The question, for example, has been raised as to whether an employer should dismiss a worker who is arrested or convicted for illegal drug offences. If the offence is of such a serious nature that the person must serve time in prison, evidently the person will not be available for work. However, in many cases consumers or small-time pushers who sell just enough to support their own habit may be given only suspended sentences or fines. In such a case, an employer should ordinarily not consider disciplinary sanctions or dismissal for such off-duty and off-premises conduct. In some countries, if the person has a spent conviction, i.e., a fine that has been paid or a suspended or actual prison sentence that has been completed in full, there may be an actual legal bar against employment discrimination towards the person in question.

Another question that is sometimes posed is whether a previous or current user of illegal drugs should be subject to job discrimination by employers. It is argued here that the ethical response should be that no discrimination should take place against either previous or current users of illegal drugs if it occurs during off-duty time and off the establishment’s premises, as long as the person is otherwise fit to perform the job. In this respect, the employer should be prepared to make a reasonable accommodation in the arrangement of work to a current user of illegal drugs who is absent for purposes of counselling, treatment and rehabilitation. Such a view is recognized in Canadian federal human rights law, which prohibits job discrimination on the basis of disability and qualifies alcohol and drug dependence as a disability. Similarly, French labour law prohibits job discrimination on the basis of health or handicap unless the occupational physician determines the person is unfit for work. American federal law, on the other hand, protects previous illegal drug users from discrimination, but not current users.

As a general principle, if it comes to the attention of an employer that a job applicant or worker uses or is suspected of using illegal drugs off-duty or off-premises, and such use does not materially affect the functioning of the establishment, then there should be no duty to report this information to the law enforcement authorities. Provisions of American law which require testing by government agencies mandate that job applicants and workers who test positive for illegal drugs are not to be reported to law enforcement authorities for criminal prosecution.

If, on the other hand, a worker engages in activity involving illegal drugs on-duty or on-premises, an employer may have an ethical obligation to act either in terms of imposing disciplinary sanction or reporting the matter to law enforcement authorities or both.

An important consideration that employers should keep in mind is that of confidentiality. It may come to the employer’s attention that a job applicant or worker uses illegal drugs because the person may voluntarily disclose such information for health reasons—for example, to facilitate a rearrangement of work during counselling, treatment and rehabilitation. An employer has a strict ethical obligation, and frequently a legal obligation as well, to keep any information of a health character strictly confidential. Such information should not be disclosed to law enforcement authorities or to anyone else without the concerned person’s express consent.

In many cases, the employer may not be aware of whether a worker uses illegal drugs, but the occupational health service will know as a result of examinations to determine fitness for work. The health professional is bound by an ethical duty to maintain the confidentiality of health data, and may also be bound by medical confidentiality. In such circumstances, the occupational health service may report to the employer only whether the person is medically fit or not for work (or fit with reservations), and may not disclose the nature of any health problem or the prognosis to the employer, or to any third-parties such as law enforcement authorities.

Other Ethical Issues

Sensitivity to the working environment

Employers normally have a legal duty to provide a safe and healthy working environment. How this is applied in the context of alcohol and drugs, however, is frequently left to the discretion of employers. Workers’ representatives have argued that many alcohol and drug problems are principally the result of work-related factors such as long hours of work, isolated work, night work, boring or dead-end work, situations involving strained interpersonal relations, job insecurity, poor pay, job functions with high pressure and low influence, and other circumstances resulting in stress. Other factors such as easy access to alcohol or drugs, and corporate practices which encourage drinking on- or off-premises, may also result in substance abuse problems. Employers should be sensitive to such factors and take appropriate remedial actions.

Restrictions on the consumption of alcohol and drugs in the workplace

There is little debate that alcohol and drugs should not be consumed during actual working time in virtually all occupations. However, the more subtle question is whether an establishment should prohibit or restrict the availability of alcohol, for example, in an establishment’s canteen, cafeteria or dining room. Purists would argue that an absolute ban is the appropriate course to take, that the availability of alcohol on an establishment’s premises might actually encourage workers who would not otherwise drink to consume, and that any amount of alcohol consumption can have adverse health effects. Libertarians would argue that such restrictions on a legal activity are unwarranted, and that in one’s free time during meal breaks one should be free to relax and to consume alcohol in moderation if one so desires.

An adequate ethical response, however, lies somewhere between these two extremes and depends heavily on social and cultural factors, as well as the occupational setting. In some cultures, drinking is such a part of the fabric of social and business life that employers have found that making available certain types of alcohol during meal breaks is better than prohibiting it altogether. A prohibition may drive workers off the establishment’s premises to bars or pubs, where actual drinking behaviour may be more extreme. Consumption of greater quantities of alcohol, or of distilled alcohol as opposed to beer or wine, may be the result. In other cultures where drinking is not such an integrated feature of social and business life, a ban on any kind of alcohol being served on company premises may be readily accepted, and not lead to counterproductive results in terms of off-premises consumption.

Prevention through information, education and training programmes

Prevention is perhaps the most important component of any workplace alcohol and drug policy. Although problem drinkers and drug abusers certainly merit special attention and treatment, the majority of workers are moderate drinkers or consume legal drugs such as tranquillizers as a means of coping. Because they constitute the majority of workers, even a small impact on their conduct can have a substantial impact on the potential number of accidents at work, productivity, absenteeism and tardiness.

One can question whether the workplace is an appropriate place to conduct prevention activities through information, education and training programmes. Such prevention efforts have an essentially public health focus on the health risks associated with alcohol and drug consumption generally, and they are aimed at a captive audience of workers who are economically dependent on their employer. The response to these concerns is that such programmes also contain valuable and useful information concerning the risks and consequences of alcohol and drug consumption that are particular to the workplace, that the workplace is perhaps the most structured part of a person’s daily environment and may be a suitable forum for public health information, and that workers tend not to be offended by public health campaigns as a general proposition if they are persuasive but not coercive in terms of recommending a change in behaviour or lifestyle.

Although employers should be sensitive to concerns that public health programmes have a persuasive rather than a coercive orientation, the appropriate ethical choice mitigates in favour of initiating and supporting such programmes not only for the potential good of the establishment in terms of economic benefits associated with fewer alcohol and drug problems, but also for the general well-being of workers.

It should also be remarked that workers have ethical responsibilities with respect to alcohol and drugs in the workplace. Among these ethical responsibilities one could include a duty to be fit for work and to abstain from use of intoxicants immediately before or during work, and a duty to be vigilant with respect to substance use when one exercises safety-sensitive functions. Other ethical precepts could include an obligation to assist colleagues who appear to be having alcohol or drug problems as well as to provide a supportive and friendly work environment for those trying to overcome these problems. Also, workers should cooperate with the employer with respect to reasonable measures taken to promote safety and health in the workplace with respect to alcohol and drugs. However, workers should not be obligated to accept an invasion of their privacy when there is no compelling work-related justification or when the measures requested by the employer are disproportionate to the end to be attained.

In 1995, an ILO international meeting of experts, composed of 21 experts drawn equally from governments, employers’ groups and workers’ organizations, adopted a Code of Practice on the Management of Alcohol- and Drug-related Issues in the Workplace (ILO 1996). This Code of Practice addresses many of the ethical considerations that should be examined when dealing with workplace-related issues concerning alcohol and drugs. The Code of Practice is particularly useful as a reference because it also makes practical recommendations concerning how to manage potential alcohol- and drug-related problems that may arise in the employment context.



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