Written by Morenike Tokosi
Employers are obliged to create and maintain a safe and healthy working environment. One way in which an employer can ensure this is to make sure that employees are not under the influence of intoxicants whilst on duty. This requirement becomes quite tricky when employees are working remotely as employees are no longer subjected to tests for intoxication and clear physical signs of intoxication are not apparent or cannot be observed through physical appearance or body language.
IS AN EMPLOYEE EXPECTED TO BE SOBER WHILST WORKING FROM HOME?
The Occupational Health and Safety Act defines a workplace as any premises where an employee performs his/her work in the course of his/her employment. This includes an employee’s workspace whilst working from home and as a result the labour laws and employer policies still apply to employees working remotely. Even though, employers are not able to physically see their employee consume alcohol and drugs. The consumption of these substances during working hours are still prohibited.
WHAT HAPPENS WHEN AN EMPLOYER HAS ASSISTED AN EMPLOYEE WITH REHABILITATION AND THE EMPLOYEE THEREAFTER RELAPSES?
If an Employer has provided a rehabilitation program to the employee as stated in the drug and alcohol policy and the employee unfortunately relapses, then the employer is not obliged to offer rehabilitation assistance again. If the employer chooses to only offer once-off rehabilitation assistance, then the employer should inform the affected employee thereof and if the employee relapses a stricter approach may be convened where an employer may follow a process to secure the fair dismissal.
Employers must give careful thought to the design and content of the alcohol policy they wish to implement. The policy must regulate alcohol consumption off the workplace premises during work hours, such as with sales representatives, field technicians – even to the extent of regulating alcohol consumptions by managers and executives when out on business lunches as so on.
If the employer wishes to address the issue effectively, then the formulation of a policy is important and requires input from all levels of management.
Let’s take a look at a case which dealt with an employee who arrived at work smelling of alcohol. In the case of NUMSA obo Mbali and Schrader Automotive SA (Pty) Ltd (2005) (MEIBC), the employee was charged with and essentially dismissed for being under the influence of alcohol during working hours. The employee claimed that he was not under the influence of alcohol and had stopped drinking at about 9pm the night before. The only indicator the employer had was that the employee smelled of alcohol but there were no other signs of the employee being under the influence. Since the employer could not prove intoxication, the commissioner found the dismissal to be unfair and reinstated the employee. This case clearly shows employers that caution needs to be taken when dismissing an employee relating to intoxication. The employer also has to prove that the employee was unable to perform his/her normal duties as a result of being under the influence.
Another factor to consider when drafting a drug and alcohol policy is whether the policy will discriminate between classes of employees. It is important to note that yes, a drug and alcohol policy may fairly discriminate between different classes of employees. A clear example of this would be if an office worker arrives to work smelling of alcohol it would not endanger the life of anyone else whilst that employee is sitting at his/her desk, other than affecting the efficiency. However, a truck driver or a pilot arriving to work smelling of alcohol and subsequently an accident occurs, the employer could easily be held liable for such an incident.
We recommend that all employers assess their policies and draft or amend their policies to reflect the true intention of the employer. We can even assist in dealing with disciplinary steps when an employee contravenes such a policy. It is of paramount importance to ensure that when dealing with alcohol and drugs in the workplace is in accordance with labour laws. If an employer makes the wrong move when dealing with an intoxicated employee or contravention of the policy it might be costly for the employer.