INTRODUCTION
The evolving landscape surrounding substance use, particularly alcohol and cannabis, in the workplace presents new challenges for employers. While alcohol has been a long-standing concern, the recent decriminalization of cannabis has introduced further complexities, particularly regarding how to manage substance use at work. This article aims to address these challenges, drawing on case law, practical advice, and legal considerations to assist employers in navigating these issues effectively.
- UNDERSTANDING THE LEGAL FRAMEWORK
In South Africa, the Occupational Health and Safety Act (OHSA) plays a pivotal role in managing intoxication at the workplace. The Act mandates employers to provide a safe working environment, free from any risks to the health and safety of employees. This includes preventing employees from working under the influence of substances like alcohol or cannabis, which could impair their ability to perform their duties safely.
Additionally, the Labour Relations Act (LRA) emphasizes fairness and equality in workplace practices, ensuring that no employee is unfairly discriminated against. This is particularly relevant when enforcing policies that might affect employees’ personal lives, such as cannabis use in their private time. Employers must balance their obligations to maintain safety and productivity with employees’ rights to privacy and dignity.
- ALCOHOL IN THE WORKPLACE
Alcohol consumption in the workplace, especially in safety-sensitive industries, is a serious issue due to the risks it poses to both employees and the workplace as a whole. To maintain safety and productivity, many employers enforce strict policies that prohibit alcohol use during work hours.
The case of Pioneer Foods (Pty) Ltd v CCMA and Others (2023) illustrates how an employee was dismissed after testing positive for alcohol, despite the company’s zero-tolerance policy. The employee had already received two final written warnings for similar offenses, making it clear that the employer’s strict stance on alcohol consumption was well-established. During a routine test, the employee tested positive for alcohol, and despite leaving the premises before a second test could be conducted, the company proceeded with the dismissal based on the violation of their alcohol policy.
Although the employee admitted to the charge of being under the influence of alcohol during the disciplinary hearing, an arbitration commissioner initially found the dismissal too harsh, recommending reemployment. However, the Labour Court reviewed the case and determined that the commissioner had overlooked key evidence, including the employee’s prior warnings and admission of guilt. The court concluded that the employer’s decision to dismiss the employee was reasonable, reinforcing the importance of adhering to workplace policies and ensuring that all relevant facts are considered in disciplinary matters.
The case emphasizes the importance of clear alcohol policies in the workplace and the need for consistency in enforcing them, particularly in safety-sensitive environments. It also highlights the critical role of proper procedural fairness in disciplinary actions.
It is important to note, however, that the mere presence of alcohol in an employee’s system does not automatically indicate intoxication or impairment. Breathalyzers and other tests can assist employers in determining whether an employee is fit for work. In this regard, the case of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (2023) explains the potential challenges of using breathalyzer results as definitive proof of impairment, especially when blood tests produce different outcomes. Employers must, therefore, exercise caution when interpreting such test results and ensure that their policies clearly define the circumstances under which action will be taken.
In this case, the employee was dismissed after testing positive for alcohol on two breathalyzer tests, despite denying any consumption. The employer’s zero-tolerance policy, which set a threshold of 0.000% alcohol in the system, deemed any positive result as gross misconduct, which could result in summary dismissal.
The employee requested a blood test, which came back negative for alcohol. Expert testimony highlighted that while breathalyzers are convenient, they can sometimes produce false positives, particularly under certain conditions, such as an empty stomach or the consumption of yeast-containing foods. Although blood tests are generally considered more reliable, they cannot detect alcohol concentrations below 0.010g/dl. In this case, the blood test was clinically negative.
At the CCMA, the arbitrator ruled that the dismissal was substantively unfair, placing more weight on the blood test results over the breathalyzer results. The employer failed to provide sufficient evidence, beyond the breathalyzer results, to prove that the employee was impaired. The Labour Court upheld this decision, stating that the employer did not present adequate proof to justify the dismissal, and dismissed the employer’s review application with costs.
This case highlights the complexities of relying solely on breathalyzer tests to determine impairment, particularly when blood tests yield differing results. Employers are advised to corroborate breathalyzer results with more reliable tests and to clearly outline the circumstances under which disciplinary action will be taken in their alcohol and drug policies.
- CANNABIS IN THE WORKPLACE: NAVIGATING THE LEGAL AND ETHICAL ISSUES
The legal landscape surrounding cannabis use in South Africa has undergone significant changes. Following the Prince v Minister of Justice ruling in 2018, the possession and private use of cannabis were decriminalized. While this shift has had a positive impact for individuals, it has also raised numerous questions for employers, particularly when it comes to whether cannabis use outside of work hours should justify disciplinary action.
In the Bernadette Enever v Barloworld Equipment case (2024), the Labour Appeal Court (LAC) ruled in favour of the employee, who had tested positive for cannabis during a routine medical check. Importantly, there was no evidence that she was impaired or intoxicated at work. The LAC emphasized the importance of balancing workplace policies with employees’ constitutional rights. In this case, the court found that the employer’s zero-tolerance policy on cannabis use was overly broad, as it did not take into account the specific circumstances of the employee’s role. Although the test result showed cannabis use, her office-based position did not require abstinence, and there was no evidence to suggest that her work performance had been affected.
The court also highlighted that the employer’s policy infringed on the employee’s right to privacy and dignity, particularly because it extended to her personal use of cannabis outside of work, where there was no risk to workplace safety or her colleagues. Moreover, the LAC found the policy discriminatory, as it treated cannabis users differently from alcohol users. A positive cannabis test does not necessarily indicate impairment or an inability to perform work duties, yet the policy failed to recognize this distinction.
This case underscores the need for employers to create policies that are flexible and context-sensitive. Rather than relying on rigid, one-size-fits-all rules, employers must assess whether an employee’s personal behaviour outside of work hours genuinely poses a risk to their performance or safety at work. Policies should consider the specific requirements of each role and the actual risks of impairment. Disciplinary action should only be taken when there are legitimate concerns, rather than making assumptions based on the substance used.
As societal and legal attitudes toward cannabis continue to evolve, employers should ensure that their policies reflect these changes. It is important for employers to outline clear guidelines regarding the handling of positive test results, specifying how factors like the employee’s role, work performance, and any mitigating circumstances will be considered. By creating well-defined and thoughtful policies, employers can protect workplace safety while respecting employees’ rights to privacy and fair treatment.
- TESTING AND IMPAIRMENT: CHALLENGES IN ENFORCEMENT
Substance testing in the workplace presents complex challenges, particularly when distinguishing between the presence of a substance and actual impairment. This issue is critical for employers, as workplace safety must be ensured without unfairly targeting employees. The Marasi v. Petroleum Oil and Gas Corporation (2023) case sheds light on these difficulties. In this case, the Labour Court sided with the employer’s strict cannabis policy due to the safety-critical nature of the operations. However, it also acknowledged that while urine tests can detect the presence of substances, they do not reliably measure impairment, especially in safety-sensitive roles.
Unlike alcohol testing, which provides an immediate indication of impairment through tools like Breathalyzers, cannabis testing presents unique challenges. Cannabis metabolites stay in the body much longer than the psychoactive effects, making it difficult to assess whether an employee is impaired at the time of work. In Marasi’s case, although his tetrahydrocannabinol (THC) levels exceeded the company’s threshold, there was no evidence to suggest his job performance was impaired. This highlights the need for testing methods that focus on detecting current impairment rather than just the presence of substances, which may not affect performance.
The Marasi case also touches on the sensitive issue of cultural and medicinal cannabis use. Marasi argued that the company’s policy did not take into account his use of cannabis as part of his spiritual practices. While the Court acknowledged that such policies could disproportionately affect certain groups, it ultimately upheld the employer’s stance, given the safety-critical nature of PetroSA’s operations and the stringent health and safety regulations in place.
This case provides several key lessons for employers. First, policies should focus on impairment, not just the presence of substances. Employers may want to consider alternatives like saliva tests, which have a shorter detection window and can better indicate recent use, or explore cognitive testing to assess impairment. Second, policies should be clear and inclusive, accounting for legitimate medicinal cannabis use when employees provide appropriate documentation. Policies should also make a clear distinction between the effects of substance use and the ability to perform work duties safely.
Lastly, regular reviews of workplace policies are essential to ensure they stay relevant in the face of changing legal and societal attitudes. With cannabis legalization and increasing medicinal use, employers must ensure their policies are updated to reflect both safety concerns and employees’ rights. Communication and training are key, as employees need to understand why certain policies are in place—especially in safety-sensitive environments.
- DISCIPLINARY ACTION: FAIRNESS AND PROPORTIONALITY
When implementing policies related to substance use, fairness and proportionality are key. Disciplinary action should be appropriate to the severity of the offense. The Pyoos v Bathroom Bizarre (2023) case involved an employee testing positive for marijuana, leading to dismissal under a strict drug policy. The CCMA upheld the dismissal, citing the employer’s consistent application of the policy. However, employers must be mindful of ensuring that their disciplinary actions are not disproportionate.
In cases where an employee’s substance use does not directly impact their job performance or workplace safety, alternative measures such as counselling or rehabilitation may be more appropriate than outright dismissal. This is particularly true in the case of employees who use substances like cannabis for medicinal purposes, as illustrated in the Marasi v Petroleum Oil and Gas Corporation case, where the employee’s use of cannabis was linked to a medical condition.
- BEST PRACTICES FOR EMPLOYERS
To effectively manage intoxication in the workplace, employers should implement comprehensive substance use policies that are:
- Clear and Transparent: Policies should clearly outline the expectations regarding alcohol and cannabis use, testing procedures, and the consequences of policy violations.
- Consistent: Employers must apply policies consistently across all employees to avoid claims of unfair treatment or discrimination.
- Fair and Proportional: Disciplinary action should be fair and proportionate to the misconduct, taking into account the nature of the employee’s role and the extent of the impairment.
- Compliant with Legal Frameworks: Policies should be aligned with relevant labour laws, including the OHSA and the LRA, ensuring that they do not infringe on employee rights.
- Supportive: Employers should provide support for employees dealing with substance abuse issues, including access to counselling and rehabilitation programs.
- CONCLUSION
Managing intoxication in the workplace is a delicate balance between ensuring a safe and productive work environment and respecting employees’ rights to privacy and dignity. Employers must be vigilant in crafting policies that reflect the evolving legal landscape, particularly in light of the decriminalization of cannabis. By implementing fair, consistent, and legally compliant policies, employers can protect their workplaces while supporting employees in overcoming substance-related challenges.
