Tuesday, July 31, 2012

An alarming number of Cape Town companies are seeking help for employees who use – and in some cases even sell – drugs in the workplace. So concluded a recent story in a local newspaper, which drew its findings from the Medical Research Council (MRC), which warned that several large firms faced the dilemma of employee drug use.

However there are no official numbers and no national guidelines for dealing with the problem, which is not confined to any specific sector or career.

It is generally recognised that alcohol and drug abuse impact negatively on productivity and general health and safety, not only in the workplace but in society at large. It is something of which employers obviously want to rid themselves.

The use of disciplinary codes
Employers have traditionally prohibited possession of or use of drugs or alcohol on the workplace premises – a prohibition usually contained in the workplace disciplinary code. In addition, most disciplinary codes prohibit being under the influence of drugs or alcohol during working hours. However, one has first to detect the problem and then take steps to solve it.

In the case of drug and alcohol abuse, employers experience difficulty in detecting and proving the users and who and to what extent they are under the influence. Accordingly: May an employer impose, as a matter of policy, compulsory drug testing in the workplace?

Medical Testing
A "medical test" is defined in the Employment Equity Act 55 of 1998 (EEA) as "any test, question, inquiry or other means to ascertain whether an employee had any medical condition". This definition is wide and would include regular forms of drug testing.

Section 7 of the EEA, which deals with the regulation of medical testing, provides that medical testing of employees or applicants for employment is prohibited, unless permitted by legislation or if the testing is justifiable in the light of:

  • medical facts;
  • employment conditions;
  • social policy;
  • the fair distribution of employee benefits; or
  • the inherent requirements of a job.

The provisions make it clear that a compelling case will have to be made out for forcing an employee to undergo a medical test. Instructively, though, an employer need not seek the permission from the Labour Court or any other authority before requiring employees to undergo medical tests, except when testing for HIV/Aids.

Employees forced to undergo tests must therefore bring actions themselves. The onus would then rest on the employee to prove that the test is not justifiable on one of the EEA's grounds.
In our view an employer could make out a compelling enough case to require employees to undergo random drug or alcohol testing in terms of the provisions of the Occupational Health and Safety Act 85 of 1993 (OHSA) and the attached General Safety Regulations.

The relevant provisions of the OHSA
Sections 8 and 14 of the OHSA and section 2A of the General Safety Regulations are relevant. Section 8 of the OHSA deals with the general duties of employers to their employees and is worded as follows:
"(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.
(2) Without derogating from the generality of an employer's duties under subsection (1), the matters to which those duties refer include in particular-
(a) the provision and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health;
(b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;..."
Section 14 (1) of the OHSA, which deals with the general duties of employees at work, is worded as follows;
"Every employee shall at work-

(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;
(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;
(c) carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety;
(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer; and…"

Sections 8 and 14 impose upon the employer and employee an extensive general duty of maintaining a safe working environment – a duty embellished in the OHSA's General Safety Regulations, section 2A of which deals with intoxication. Thus:

"(1) Subject to the provisions of subregulation (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 subregulation (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…."
The OHSA presents compelling reasons to test

The Minister of Labour inserted section 2A into the regulations in 2003, perhaps an indication of the Department of Labour's recognition of drug and alcohol abuse as a growing problem impacting on health and safety.
Failure to comply with this duty carries with it the threat of criminal sanction or heavy fines.
A compelling argument can therefore be made by employers that in order to comply with its duty to provide a safe working environment and to prevent intoxicated employees from entering the workplace, compulsory drug testing must be allowed in order for employers to comply with the OHSA obligations.
Employers will have an especially compelling argument in cases where, within their respective workplaces, hazardous or potentially dangerous conditions exist. In such instances the employer may require that all employees be sober at all times in order to avoid health risks to him or herself as well as to fellow employees.
The nature of the work performed may also require regular testing in order to ensure that no employee poses any risk -- for example, crane operators, drivers of heavy vehicles and persons using toxic substances.
This set of circumstances would give an employer a highly compelling argument for compulsory drug testing.
What of highly specialised activities, such as the medical profession and the financial services industry?
In such instances the employer may argue that the reason for imposing compulsory drug testing is that, in order to fulfil the inherent requirements of the job, all employees have to be sober. This once again may amount to a compelling argument.
The OHSA could therefore offer employers with an opportunity and a justification for requiring random testing to ensure that employees are not intoxicated while performing their duties.