Alcohol and drugs at work: what measures do you have in place to deal with workers under the influence?

Employees who arrive at work under the influence of drugs or alcohol can instigate unpleasant situations in the workplace. As an employer, it is important to understand your options in dealing with these kinds of situations.

Ensure you have a clear alcohol and drug policy in place

Establishing a preventative alcohol and drug policy with clear guidelines is a must for any organisation, whether large or small. Having such a policy in place has been a legal requirement since 1 April 2010. It also fits within the broader policy on employee well-being within an organisation.

When developing an alcohol and drug policy, remember that:

  • you must include a declaration of intent (mandatory): this outlines the internal objectives and key principles
  • you can also include concrete procedures (optional), e.g. a procedure that defines the actual steps to be taken by supervisors when they are confronted with an employee who is drunk or intoxicated.

What is the difference between being ‘drunk’ and ‘intoxicated’?

Drunkenness: changes in a person’s condition after alcohol consumption, leading to loss of control over their behaviour without necessarily being unaware of their actions.  

Intoxication: the scientific, quantitative measurement of the blood alcohol concentration level or the presence of drugs in urine.  

Can employers require employees to undergo testing for drug and alcohol use?

Testing for drug and alcohol use in the workplace is only permitted if the procedure is included in the employee policy manual and provided that all elements of an alcohol and drug policy (prevention, procedures, communication, assistance and sanctions) have been established in accordance with collective bargaining agreement (CBA) no. 100. Biological testing (e.g. blood or urine analysis) can only be conducted by the prevention advisor/occupational health physician (PA-OHP). However, non-biological testing (e.g. breath testing) can be conducted by the employer or by members of management.

The employer cannot force the PA-OHP to conduct biological tests for drug or alcohol use. The PA-OHP decides autonomously and independently about conducting these tests within the framework of the medical monitoring programme of the organisation.

Employers generally tend to rely on testing procedures for drug and alcohol use that are included in the employee policy manual, even though they hold no real probative value. The only result available to the employer is a form completed by the PA-OHP that either confirms or denies the employee’s incapacity to work. For medical confidentiality reasons, the PA-OHP is not permitted to inform the employer whether the employee tested positive or negative for alcohol or drug use.   

Although it is certainly valuable to have such testing procedures in place as they may offer proof, they are rarely a decisive factor. Testing procedures are mainly used to deter drug and alcohol use among workers.

Does arriving at work under the influence constitute a just cause for immediate dismissal?

According to collective bargaining agreement (CBA) no. 100 and current legislation, the first thing to do as an employer is take preventive action whenever a situation arises due to (suspected) use of alcohol or drugs. Immediate dismissal may be warranted if the facts are recurring or serious in nature.

Without going into the formalities of what constitutes a just cause for immediate dismissal, it is clear that the law takes these two criteria into account:

  • any prior warnings issued via registered mail; and
  • the seniority and/or job position of the employee in question.

For instance, in previous judicial proceedings, the fact that a person was a clerk at a bank and was therefore the first point of contact for customers, was considered an aggravating circumstance. In that particular case, the person’s alcohol-related dysfunctional behaviour was harmful to the company and therefore constituted a just cause for immediate dismissal. In another case, a court decided that the immediate dismissal of a construction worker who had consumed alcohol during his lunch break at work was warranted because of his safety-related job position.

In the case of an employee with many years’ seniority who had arrived at work drunk on just one occasion, the outcome was different. As no prior warnings had been issued by the employer, and given the employee’s long seniority, the court decided that the isolated incident did not warrant immediate dismissal.

Get help from external experts or sources

Any evidence can be used to prove an employee’s incapacity to work due to suspected use of alcohol or drugs. This includes subjective statements from witnesses describing ‘external characteristics’, for instance.

In some cases, you can even ask for assistance from external parties such as the police, such as when a truck driver who appears to be drunk is getting into his vehicle in a public space and is about to drive off.

What is the definition of a ‘public space’?

Public space: the criterion for defining a ‘public space’ is whether the place is open and accessible to the public. A place is considered accessible to the public when anyone can access it, irrespective of its intended purpose. 

This blog post was developed with input from Annelies Feytons, corporate lawyer at Mensura.

Establish a clear and conclusive alcohol and drug policy

Alcohol and drugs pose a significant health and safety risk for your workers. Mensura’s team can assist you with developing an effective alcohol and drug policy. Contact us.