Managing illness among staff can be challenging for employers, particularly when it comes to drug misuse and alcohol abuse. Understanding your responsibilities under Health and Safety legislation is crucial when addressing these issues, as is knowing how to handle drug or alcohol-related matters with sensitivity and tact. Firstly, it is important to recognise that substance misuse should be classified as an illness. Addiction to drugs and alcohol is often symptomatic of other underlying issues but has a physiological basis and can be addressed with appropriate support.
The Legislation: Substance abuse can lead to poor productivity, absenteeism, and increased risk of accidents, affecting the individuals involved, their colleagues, and the wider public. Certain industries, particularly those involving driving, such as public transport, face specific risks if workers are unfit due to alcohol or substance misuse. Various legislative measures address substance misuse issues. The primary legislation includes the Health and Safety at Work Act (1974) and the Management of Health and Safety at Work Regulations (1999). Additionally, the Road Traffic Act (1988) applies to employers and employees who drive as part of their role. This legislation requires employers to ensure their workers are fit for duty and not under the influence of drugs or alcohol.
Dealing with Alcohol Issues: Employers in any industry should develop and implement an alcohol policy. The main objectives of this policy should be to manage employees' alcohol consumption and identify any apparent alcohol problems.
Effective policy formulation is crucial and should involve input from all levels of management. The content of the policy should be informed by past experiences in dealing with alcohol-related issues.
The Occupational Health and Safety Act; General Regulations and the company policy
Section 2(a) of the above-mentioned regulations state;
2A. Intoxication
1. Subject to the provisions of sub regulation (3), an employer or a user, as the case may be, shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
2. Subject to the provisions of sub-regulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.
3. An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.
From the general regulations above it is clear that there is a duty on employers to ensure that employees;
who appear to be under the influence of intoxicating liquor or drugs are not allowed to work, enter, or remain at the workplace.
Are not under the influence of intoxicating liquor or drugs at the workplace.
Do not have intoxicating liquor or drugs in their possession.
Do not offer intoxicating liquor or drugs to other employees.
In other words zero tolerance in that you may not even arrive at work smelling of alcohol that was consumed the night before. To be accused of “having presented for work after having consumed alcohol (or a substance having a narcotic producing effect), or with alcohol smelling on the breath”, the employee does not necessarily have to be plainly intoxicated. He need not necessarily have had to have consumed a sufficient quantity of alcohol so as to have placed him “over the legal limit”.
In addition, your policy needs to outline how problem drinking will be addressed and what help will be offered. Normally appropriate help will include referral to drug and alcohol counseling services. The policy should treat problem drinking as a health issue, but it may be necessary to ultimately manage the issue as a disciplinary matter. This should not be your first reaction, but your policy should establish at what point this may become appropriate.
Incapacity or misconduct
Schedule 8 of the Labour Relations Act further recommends that employers should treat situations where it is suspected or known that an employee is dependent on intoxicating liquor or drugs as incapacity and not misconduct.
The policy (in terms of assistance, counseling, rehabilitation, etc) will only be applied to those employees who have (or who demonstrate that they have) a genuine desire to be helped, and where it can be reasonably concluded that the rehabilitation program will result in success for this employee.
Alcohol in the workplace; when does misconduct become incapacity
In terms of the Occupational Health and Safety Act General Regulations, employers are responsible for ensuring that employees who seem to be under the influence of an intoxicating substance or consume such a substance in the workplace are not allowed on the premises of the company. Many employers, as a result of the mentioned regulations, implemented strict rules in the workplace dealing specifically with the use of alcohol (or any other intoxicating substances) and measures that may be taken against offenders.
Examples of such rules could be that an employee may not consume any intoxicating substance prior to reporting for duty. As a result of this rule, it would be an offence if an employee reported for duty with his or her breath smelling of alcohol. In terms of the company’s disciplinary code, the employee may now be subjected to progressive disciplinary measures such as written warnings and ultimately the termination of the employment relationship.
In Transport and Allied Workers Union of South Africa obo Dabula / Algoa Bus Company (2013) 22 SARPBC 8.11.1, the applicant was dismissed for being under the influence of alcohol whilst on duty. The results of a breathalyser test reflected a reading of 0.84 which implied a condition of 8 times the allowed limit of 0.10. The test was based on the alcohol content on his breath and not his blood. Despite agreeing to the reading, the applicant denied that he was under the influence of alcohol claiming he was fit to work, no corroborating evidence existed, no observations were made and the breathalyser was not reliable. The company maintained a zero-tolerance policy regarding being under the influence of alcohol during working hours. The applicant was charged in accordance with the policy which had been consistently applied. The legal limit for alcohol on the breath was 0.10mg/thousand units of breath. The applicant registered a reading 8 times the norm of 0.10. The company norm, however, was zero. It was not the first time that the applicant was confronted with being under the influence. In September 2011, he was counseled having admitted having an alcohol problem but he refused any assistance, stating “he would be able to manage his problem on his own”. The reading of 0.84 confirmed that there was alcohol on his breath and not in his blood. The particular tester was designed to measure alcohol on the breath. No previous warning for alcohol-related offences was issued to the applicant, except for the counseling. The applicant could not have been fit for work if he was 8 times over the legal limit. No direct observations were made by the tester. The applicant based his appeal on “desiring a second chance”. The commissioner stated that employees can be dismissed if they consume alcohol to the extent that they are rendered unfit to perform their duties. Driving under the influence of alcohol contravened a cardinal rule of the respondent in this matter. Rules designed to discourage or prevent the abuse of alcohol during/before working hours assume several forms. Proof that the employee performs work in an area where a mishap could endanger himself, or others, or that the employee’s condition embarrassed the employer, will serve as aggravating factors.
The sheer magnitude of the test result raises concerns. If this is viewed against the policy of zero tolerance, the misconduct is gross. The policy referred to zero tolerance during working hours – he exceeded the norm by far. This must imply that he was under the influence. The dismissal of the applicant was fair.
