Drugs & Alcohol In The Workplace: An Overview

This article is a transcribed portion from episode 9 of our Labour Pains Podcast - Drugs & Alcohol in the Workplace. It has been adapted for readability in this context.

Our expert guest for this episode is one of our associates, Lisa Szöke.

Legal Framework Overview

Typically, an employer will have a policy in place that prohibits employees from using drugs or alcohol on the premises, or from coming to work intoxicated. The aim is to prevent possession, use, and intoxication in the workplace. Often, this is linked to health and safety, but it can also relate to general decorum. When people are under the influence, they might not behave appropriately. Usually, breaches of these policies are handled under the misconduct bracket, and disciplinary action is taken as needed.

What are the responsibilities of employers beyond decorum and safety? Are there any overarching responsibilities when it comes to ensuring a drug and alcohol-free workplace?

The main responsibility of employers is to provide a healthy and safe working environment. This is particularly crucial when it comes to illegal drugs, as permitting their use would mean encouraging criminal activity. Health and safety are paramount. If an employee is working with machinery or driving while under the influence, they could pose a risk to themselves, their colleagues, and the public. Employers have a strict obligation to prevent this and ensure safety in the workplace.

What rights do employers have when it comes to testing their employees for drugs and alcohol?

Employers always need the consent of the employee to conduct any medically related test. However, employers often get this consent upfront in the employment contract. There’s usually a clause that states the employee agrees to undergo any screening, whether random or standard protocol testing. This way, consent is already given when needed.

What about environments where regular testing isn't the norm? How does that work?

In professional environments where regular testing isn’t typical, employers would need to obtain consent on an ad hoc basis if testing is required. It’s crucial to have that agreement before proceeding.

If something goes wrong, can employers be held liable if an employee under the influence causes harm to another employee?

Absolutely. That’s precisely why employers have such a strict obligation under the Occupational Health and Safety Act. If they don’t take reasonable steps to ensure the safety of their employees, they can be held liable. In severe cases, where negligence results in injury or death, the CEO can even be held criminally liable.

What rights do employees have in this regard?

Employees have the right to refuse consent for drug and alcohol testing. However, if the consent to be tested is embedded in the employment contract, refusing to be tested could mean refusing the terms of the employment. Essentially, if you've agreed upfront, you're bound by those terms.

So, is this considered duress? Can employees protect themselves from environments where they believe the testing practices are unfair or discriminatory?

It's a bit complex. While employees can refuse testing in environments where it wasn’t previously agreed upon, employers can still rely on other observations to make their case. For example, if an employee smells of alcohol or exhibits behavior indicating intoxication, these observations could be used as evidence, even if the employee refuses a test.

As for protecting themselves from unfair or discriminatory practices, recent cases like the Barloworld case highlight the challenges employees face. In this case, an employee was dismissed for testing positive for cannabis. She argued that this was discriminatory because alcohol users could return to work after a day, whereas cannabis users might have to wait weeks for a clean test. The court sided with her, noting the potential for unfair treatment under blanket policies that don't account for the differences between substances.

How has the Barloworld case affected workplace policies?

This case has significantly impacted workplace policies. The court emphasized that an employee’s right to privacy, especially in their private life, must be respected. Employers can no longer enforce blanket zero-tolerance policies for cannabis use without considering the specific circumstances of each case. However, the court did leave room for stricter policies in certain roles where safety is a concern, such as jobs involving machinery or driving.

Does this mean employers need to reassess their drug and alcohol policies?

Absolutely. Employers now have a higher burden to justify strict drug policies. They need to consider the role of the employee and whether their private use of substances like cannabis truly impacts their job performance. If it doesn’t, enforcing a zero-tolerance policy could be seen as unfair.