Recently, the discussion on testing in the workplace has largely centred around testing for COVID-19. However, there is a broader obligation on employers in relation to testing and safety in the workplace. In this article, we explore to what extent this is regulated, and whether an employer may lawfully introduce a substance testing policy in the workplace in St. Lucia.
The Labour Act of St. Lucia provides for testing by employers as “prescribed by regulations”. At the time of writing, there are no regulations in place. However, that is not the end of the matter for the Act requires employers to ensure a safe working environment, and employees are to exercise reasonable care in undertaking their work so as not to cause injuries. Health and safety duties are also recognized at common law (case law) as an aspect of the duty imposed on employees to obey their employer’s lawful orders, that is, instructions which are within the scope of their contract of service and are reasonable.
Therefore, relying on duties imposed by statute, common law or contract, employers may implement a health and safety policy, including one relating to substance testing. Drafting and implementing such a policy must be driven by principles of reasonableness. There must be a clear objective being met. Such objectives may be guided by the following questions, “What objective warrants testing? How has the employee, whether by words or conduct, demonstrated to the employer that they should be tested?” And, the employer should be cognizant of the duty to keep sensitive medical information confidential and make only reasonably necessary disclosures.
In our view, random testing policies for jobs that carry a high risk of injury to employees or others are likely to be reasonable. These include jobs such as drivers, persons working in building and construction, those employees who handle heavy machinery and equipment, hazardous chemicals, employees in health and security services. A policy which requires testing where an employee exhibits symptoms of an infectious disease or of substance abuse may also be reasonable, whether imposed as a health and safety or performance management measure.
Overall, a well drafted policy may have the following characteristics:
- A clear statement of purpose,
- Be non-arbitrary,
- Indicate how testing will be done and who is authorized to carry out testing,
- Set out the parameters for what constitutes impairment,
- State how positive test results will be treated,
- Indicate what disciplinary procedures will be instituted upon the receipt of a positive test result or if the employee refuses to test, and
- Include whistleblower clauses to protect employees while ensuring that false claims are dealt with.
An appropriate workplace substance testing policy can be set out in the contract of employment or in handbooks and policies which are incorporated into the employment contract. Where an employee refuses to be tested or tests positive, the contract may stipulate what steps are to be taken and whether disciplinary action will follow. Under the Labor Act and at common law, an employer may summarily dismiss an employee for disobedience to a lawful and reasonable order that amounts to serious misconduct.
By way of summary therefore, based on the current legal framework, it is possible for an employer to institute a substance testing policy for workers. This policy must be clearly defined and must also be reasonable and proportionate in its response. Arbitrary testing is to be avoided and there must be safeguards for the use of the confidential information obtained.
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at email@example.com.