Psychological Fitness for Duty and Risk Assessment in Ireland: Changes to Occupational Health and Safety Regulations in Europe Are Making It Easier for Irish Employers to Assess the Fitness of, and Risks Posed by, Workers

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In March 2000, European Union (EU) heads of state agreed on an ambitious goal: to make the EU "the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion." (1) Subsequently, the Lisbon Agenda, named after a 2005 summit held in Portugal, called for high-level integration of social and economic policy to strengthen the EU's capacity to promote entrepreneurship and acquire reformation society technologies.

The European Commission has encouraged EU member states to develop strategies in line with the Lisbon Agenda that will support the psychological needs of workforces that are facing increased business competition while growing ever more culturally and racially diverse. Under Ireland's Safety, Health and Welfare at Work Act of 2005, which in some ways mirrors the Lisbon Agenda, employers have a "duty of care" to their employees. This duty requires preventing exposure to a wide range of psychological stressors, including critical incident stress (arising from industrial accidents, fires, and explosions) and workplace violence (including assaults, workplace bullying, and intoxicants).

A review of recent events in Ireland shows that the focus on psychological health is warranted. First, Ireland has experienced many highly publicized workplace murders involving guns (despite the relative unavailability of firearms), knives, and beatings, and in one incident an individual set himself on fire. The emotional toll of these incidents has not gone unnoticed--Ireland's Health and Safety Authority has placed an especially high level of importance on the prevention of violence and the assessment of employee risk.

Second, a recent national survey (2) of 1,000 adults in Ireland found that 11 percent of people had experienced a significant mental health problem in the past year, and one in five people in this group were caring for or related to a psychologically distressed person. Overall, alcoholism, depression, and suicide were the most worrisome mental health problems reported.

Finally, workplace-related stress claims are now common in Irish courts. In one of these cases, McGrath v Trintech Technologies Ltd., the plaintiff claimed to have been psychologically affected by the conditions he faced when posted abroad by his employer. The High Court accepted that the employee had suffered psychological problems as a result of the workplace environment, but it dismissed his claim on the grounds that the employer could not have foreseen that the plaintiff's health would be affected by the specific work conditions.

The court affirmed, however, that the employer's degree of compliance with the requirements of the 2005 act should be considered in legal claims involving psychological stress. This decision may encourage employers and EAPs not only to consider the risks associated with psychological stressors at the workplace, but also to obtain psychological fitness-for-duty evaluations (FFDEs).

EMPLOYEE AND EMPLOYER DUTIES

The Safety, Health and Welfare at Work Act of 2005 does not focus solely on employers--it also places a burden on employees to inform their employer if they believe they are suffering from a physical or mental disease or impairment that would likely cause them to expose themselves or others to risk. After learning of such a condition or the use of an intoxicant, the employer can remove the employee from the workplace and may also require other measures, including drug testing, psychological and psychiatric FFDEs, or modified workplace activities.

As in the United States, the vast majority of employee assistance programs in Ireland do not perform psychological and psychiatric FFDEs. These assessments generally are not considered part of European EAP/employer contracts; rather, they are seen as forensic (medical/legal) rather than treatment services. Instead of performing these evaluations in-house, European EAPs frequently rely on occupational health physicians, who are on the employer's payroll, to perform these assessments. …