Testing positive versus being under the influence
Employees who report for duty under the influence of alcohol or drugs present a real problem. The use of alcohol or drugs affects an employee’s sight, speech, coordination and reaction speed. In addition, employees working with machinery or driving a vehicle whilst under the influence pose a high risk to the employer, themselves and their colleagues. It is the employer’s responsibility to create a safe working environment for all employees and must always act in accordance with the applicable disciplinary code.
There are Commission for Conciliation, Mediation and Arbitration (CCMA) rulings where an employee tested positive for alcohol but was not deemed to be under the influence of alcohol. The rate at which a person becomes impaired or intoxicated is influenced by factors such as gender, age, body size, food in the stomach, etcetera.
Because labour law does not specify the symptoms to determine whether an employee is under the influence of alcohol, it is important to implement an alcohol/drugs policy in the workplace. This policy aims to establish the employer’s rules in terms of alcohol and drugs (e.g. possession, consumption, intoxication, etc.) and ensure that all employees are aware of these rules and the consequences if these rules are broken. The policy should be clear and stipulate the rules, sanctions and the test procedure, e.g. a breathalyser test for alcohol or a urine test for drugs. Through this policy, the employer can also acquire the employee’s necessary consent to undergo these tests.
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We recommend that employers implement a “zero tolerance” alcohol-related offence policy, as alcohol or drug-related offences in the workplace are very serious and the employer’s responsibility to address. The seriousness of the offence is directly linked to the employee’s duties and obligations regarding the (possible) consequences of this offence and the impact of this offence on the employer-employee relationship. Take note that the employer must be able to prove that employees are aware of the policy before the employer can take disciplinary action.
Consider the following symptoms to determine whether an employee is under the influence:
- Red/bloodshot eyes with enlarged pupils
- Slurred/incoherent speech
- Change in behaviour
- Staggering, i.e. the employee is disoriented
- Delayed reaction and coordination
Breath smells like alcohol
- Call the employee aside, preferably to an office. Ensure that a witness is present.
- Determine whether the employee is under the influence. Then, request the employee to blow into an alcohol tester, or you can take the employee to a physician for blood tests to determine their blood alcohol level.
- If none of these methods is available, or if the employee refuses to cooperate and give permission, it is vital to record their behaviour. Ask witnesses to also record their observations, which must be in writing.
- Send the employee home for the rest of the day without pay.
- Follow the correct procedure as per your disciplinary code. Keep in mind that the sanction given must be appropriate in relation to the type of work performed by the employee.
Employers must implement clear rules in the workplace and follow correct procedures regarding all labour matters, especially discipline in the workplace. Employers should note that inconsistent disciplinary action/application can lead to unfair labour practices.
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