When do employees have to tell their employer about medication they are taking?

Medication disclosures in the Workplace

A common scenario that crops up is when employee’s take medication whilst at work. Many employers are in the dark about how best to approach the matter and are unaware of the risks of not managing the process effectively.

Not only can health and safety issues arise due to impairments but also managers can often mischaracterise the issue as a misconduct matter before properly investigating the full circumstances.  It is important to know how to manage such disclosures properly without jumping to conclusions and acting disproportionately.

Of course, you must assess on a case-by-case basis particularly if medication will affect an employee’s alertness or concentration or there are potential concerns where duties involve driving, machinery, working at height, hot equipment or lone working.

It is important to understand that employers must assess and manage those risks while respecting confidentiality and meeting their employment and equality obligations.

The fact that an employee takes medication does not, by itself, establish that they are unsafe or unfit for work. A warning about possible side effects should prompt appropriate enquiries rather than an automatic restriction or disciplinary response.

Immediate steps an employer should take

An employer should begin with a private discussion about any effects the employee is experiencing, relevant medical advice and the duties that may be affected by way of a welfare meeting. It is important to remember that medical data is a special category of data and needs to be kept confidential and in alignment with GDPR requirement. Any enquiries should be limited to information reasonably necessary to assess fitness and safety. Managers should not advise employees to stop treatment or change their dose.

The next step is to review the risks associated with the employee’s actual work.

One often overlooked aspect of assessing workplace fitness when medication is being used include assessing what appropriate controls might look like to mitigate risk. This could include temporary alternative duties, adjusted hours, additional breaks, supervision or restrictions on particular equipment.

Where there is an immediate, credible danger, the affected activity should be stopped while safe arrangements are established and a proper risk assessment undertaken. The assessment, controls and review arrangements should be recorded within a robust risk assessment document.

Sometimes it may be appropriate to consider GP confirmation and/or occupational health advice where the position is uncertain, or the role is safety critical.  

Common mistakes that are often made:

1. Assuming that a listed side effect establishes actual impairment.
2. Treating a positive drugs test as conclusive evidence of unsafe working.
3. Commencing disciplinary action without investigating the medical explanation if an employee has not formally disclosed the medication.

Failure to disclose

A common question is whether you can dismiss someone if they have failed to disclose taking medication that can pose a risk to themselves or others.

If an employee is taking medication and failing to comply with a reporting requirement then this could be potentially treated as a misconduct issue.

However, before treating non-disclosure as misconduct, the employer should establish whether the requirement was clear, reasonable and communicated, what the employee knew about the potential effects, and whether they reasonably understood that disclosure was necessary.

This distinction is illustrated by the case of Bonner v Fourways Plant Ltd (2021).

Mr Bonner operated a forklift and other yard machinery. Following eye surgery, he took tramadol that had not been prescribed to him and failed to disclose this before attending work or undergoing a drugs test. Mr Bonner was dismissed for failing to disclose and as a result breached the company’s Substance Misuse Policy. 

Mr Bonner brought an unfair dismissal claim which was successfully defended by the employer. 

The case raises the importance of having a clear reporting process to rely on if treating non-disclosure as a reason for dismissal. The employer in this case could clearly demonstrate the requirements and how the employee failed to meet them.

Capability

Where an employee takes medication as directed but experiences effects that prevent them from performing their duties safely or effectively, the appropriate action may be capability rather than misconduct.

The employer should obtain relevant medical evidence, consult the employee and consider adjustments, temporary restrictions and suitable alternative work. If difficulties remain, any capability process should be fair, evidence-based and subject to appropriate review.  When considering how best to manage a situation of this nature, dismissal should only be considered as a last resort after the relevant alternatives and legal obligations have been properly examined.

Clear process

As the case above highlighted, employers should have a clear, confidential process for reporting medication-related safety concerns in addition to setting out expectations and consequences for non-disclosure.  Equally, staff should understand what needs to be reported, whom to contact and how the information will be used. The requirement should focus on potential effects relevant to safe working, rather than demanding disclosure of every medication or treatment. A reporting procedure should enable an informed assessment and appropriate support to follow.

In an ideal world, these arrangements should be explained at the induction stage and reinforced through periodic reminders and relevant training. There should be appropriate channels where employees are reminded and encouraged to report changes that may affect safety, including new medication, changes in dosage, new side effects or revised medical advice.  Periodically, employers should then review the risk assessment and any restrictions, rather than allowing temporary arrangements to continue indefinitely.

Any decision to exclude an employee from work, alter pay or commence formal proceedings requires separate consideration of the contractual and legal position and legal advice should be sought before doing so.

We would encourage all employers to examine their current process and procedures and particularly ensure they have appropriate policies in place that include alcohol and drugs misuse and medication reporting.