Donovan Cheah was invited to speak at the MECA South Industrial Relations Convention 2017 on the topic of “Managing Drugs and Alcohol Abuse at the Workplace“. The convention was held on 18 and 19 July 2017 at the Renaissance Johor Bahru. Here are some takeaways from his presentaton:
- There is currently no legislation in Malaysia specifically addressing the issue of drugs and alcohol abuse at the workplace, although employers do have a general duty to ensure the safety and welfare of their employees under the Occupational Safety and Health Act 1994.
- Employers should consider incorporating a drug and alcohol policy in their employee handbook. There have been several Industrial Court cases which have upheld the dismissal of employees who were found to be in violation of the company’s drug and alcohol policy.
- There is no law that directly prohibits or allows drug and alcohol testing on employees (or during the pre-employment stage) although it is implied that such testing is allowed with reference to the Guidelines on Preventing and Responding to Drug and Alcohol Problems in the Workplace issued by the Department of Occupational Safety and Health. Further, there are Industrial Court cases which have allowed termination of employees who have failed random drug testing conducted by their employers.
- Even though random drug and alcohol testing may be legally permissible, employers should consider whether it is a necessity to conduct such testing after weighing the proportion of risk involved. For example, there is a greater need for such testing if employees are involved in “safety sensitive” roles (such as maintenance or operation of heavy machinery or transport vehicles, aircrafts, etc) compared to other roles.
- There are drawbacks to drug and alcohol testing. These tests only measure the presence of drugs and/or alcohol in the system, but do not measure impairment. Further, these tests are liable to false positives and do not explain the reason why an employee may have consumed drugs and alcohol. Some employers in other jurisdictions have moved away from drug and alcohol testing and have instead implemented tests to measure actual impairment (eg: agility tests).
- There are conflicting Industrial Court cases about whether off-duty misconduct due to alcohol or drug abuse can be valid grounds for termination. Some cases allow for termination if the misconduct affects the reputation and image of the company. Other cases have mentioned that the punishment must be proportionate to the misconduct and cannot be “too draconian”.
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