The law on intoxicating substances in the workplace is clear. The Occupational Health and Safety Act places a strict obligation on employers to ensure that they do not allow entry to the workplace if an individual is intoxicated, whether under the influence of alcohol or drugs. This obligation is in line with the duty to provide employees with a safe working environment and it is usually regulated by means of a workplace policy that communicates the company’s stance on intoxicating substances. This workplace policy is enforced through regular testing, usually with breathalyser tests for alcohol and drug testing kits that check for a variety of illegal substances. However, there are a number of do’s and don’ts that must be kept in mind to ensure that the employer’s duty to provide a safe working environment is met in a manner that is equitable to employees without infringing on their rights unjustly.
The danger of alcohol in the workplace
Employees that report for duty under the influence of alcohol present a real danger not only to themselves, but to their colleagues and employer. The use of alcohol affects sight, speech, coordination and reaction speed, which is extremely hazardous when working with machinery or driving a vehicle. According to the South African Labour Guide, 20% to 25% of injuries in the workplace involve employees under the influence of alcohol.
The employer’s duty
DO, start with a clearly communicated substance abuse policy, reputable testing equipment and clearly defined procedures.
DO not just buy a cheap breathalysers and drug tests from the cheapest supplier and expect to pitch up tomorrow and start testing employees in a legal manner.
A clearly communicated policy that details the company’s position on alcohol and other intoxicating substances is a necessary starting point for the enforcement of occupational health and safety rules. Such a policy must detail how and when employees will be tested for substances – either on a random basis of suspicion, or regularly. In safety-critical industries, workers are usually tested before they clock in to start a new day, and when returning from lunch breaks.
Zero tolerance means zero margin for ambiguity
Do define the rules clearly, don’t allow room for incorrect interpretation
From a disciplinary perspective, the implications of contravening workplace policies must be clearly expressed, particularly in high-risk industries such as mining where industry-specific legislation takes a zero-tolerance approach to intoxication and deems it a dismissible offense.
Where an employer has a zero-tolerance alcohol policy, it is advisable to ensure that this is linked to the employment contract and that employees are expressly aware of the implications of policy contravention which could lead to dismissal. Rules against alcohol intake must leave no room for ambiguity. It must be explicitly stated, for example, that no-one may be intoxicated (or under the influence)when reporting for duty or at work, and that a reading above Zero (0.005%Bac) will be considered as being under the influence. When considering drugs it should clearly state that any positive test on a drug screen would be unacceptable and the person would be remove from duty until such time as a confirmation test can be obtained. This is important because simply having a zero-tolerance policy in place does not mean that a dismissal is fair, the policy should be clear and easy for employees to understand.
As such, it’s also important for employers to be careful when formulating charges against employees for contravening the rules. By specifying their zero-tolerance approach, an employee can then be accurately charged with arriving or reporting for duty with more than 0% alcohol in their blood and dismissed in line with their employment contract.
Employee rights: safety over privacy
It is particularly important for both employers and employees to note that workplace policy and testing is something that is well within the employer’s rights to enforce. In other words, if testing for alcohol or drugs is conducted in accordance with company policy, an employee has no grounds to refuse testing or argue the fairness thereof.
It is also important to be aware of the fact that workplace policies trump personal privacy rights, when it comes to alcohol and substances. A recent labour court judgment (Enever v Barloworld) confirmed that while the use of cannabis has been decriminalised by the Constitutional Court in an individual’s private life, this does not excuse failure to comply with company rules that necessitate a clean result from substance tests. Whether or not an individual is impaired at the time of testing positive for a substance (such as THC, the active ingredient in cannabis) is irrelevant. What matters is compliance with company rules and proving non compliance. Here, the labour court confirmed that as long as there is a reasonable policy in place written within the bounds of the law, the policy must stand.
By Rhys Evans, Managing Director at ALCO-Safe
23 November 2022
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Rhys Evans
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