As alcohol and cannabis use continues to rise, substance abuse is becoming harder to ignore. Nadeem Mahomed, director in the employment law practice at CDH, unpacks the growing risks of substance abuse in the workplace and explains the need for employers to implement clear, fair policies.
Substance abuse in the workplace is a pressing issue that affects not only the health and safety of employees, but also the overall productivity, reputation and legal compliance of organisations. In South Africa, the challenge is compounded by the increasing prevalence of alcohol and cannabis use, the rise of remote working, and evolving legal frameworks.
For employers, the imperative to regulate substance abuse is both a moral and legal one, requiring clear policies, consistent practices, and a nuanced understanding of employee rights and workplace safety.
Why employers must regulate substance abuse
South African law imposes a duty on employers to provide a safe and healthy working environment. Section 8(1) of the Occupational Health and Safety Act 58 of 1993 (OHSA) requires employers to ensure, as far as is reasonably practicable, that the workplace is free from risks to health and safety. Regulation 2A of the OHSA ventures further, prohibiting any person from being under the influence of intoxicants at work, and forbidding employers from permitting such individuals to enter or remain at the workplace. Failure to comply with these obligations can result in significant penalties. Moreover, employers in high-risk industries such as mining, construction and transport face heightened scrutiny, given the potentially catastrophic consequences of substance-related incidents.
Beyond legal compliance, employers have an ethical responsibility to protect their workforce and the public. Substance abuse impairs judgment, coordination and decision-making, increasing the likelihood of accidents, errors and injuries. It also undermines the trust and cohesion necessary for a productive and harmonious workplace.
The impact of substance abuse on the workplace
Employees under the influence of alcohol or drugs are more prone to making mistakes, causing accidents, and endangering themselves and others. In safety-critical roles, the risks are particularly acute. Even in less hazardous environments, substance abuse can lead to absenteeism, reduced performance and increased healthcare costs.
Substance abuse often manifests in behavioural changes – aggression, absenteeism, poor concentration and interpersonal conflict. This can erode morale, foster a toxic work environment and damage the employer’s reputation. Persistent issues may also lead to higher staff turnover and difficulties in attracting and retaining talent.
Employers who fail to address substance abuse may face legal claims, including those arising from workplace accidents, harassment, discrimination, or unfair dismissal. Reputational damage can also ensue, particularly if incidents become public or affect clients and stakeholders.
Alcohol consumption at work events and year-end functions
Work-related social events, such as year-end functions, often involve the consumption of alcohol. While these occasions can foster camaraderie, they also present significant risks. Employers may be held liable for incidents that occur as a result of intoxication, including accidents, injuries, or inappropriate behaviour, such as harassment.
To mitigate these risks, employers could do the following:
- Set clear expectations: Communicate policies regarding substance abuse and consumption during working hours as well as alcohol consumption at work events, including limits and consequences for misconduct.
- Provide alternatives: Offer non-alcoholic beverages and ensure food is available.
- Monitor consumption: Restrict the amount of alcohol served and consider limiting bar hours.
- Arrange safe transport: Provide taxi services or arrange group transport to prevent employees from driving under the influence.
- Discourage risky behaviour: Make breathalysers available and prohibit employees from using their vehicles if they have consumed alcohol.
Intoxication can lower inhibitions and impair judgement, increasing the risk of harassment, including sexual harassment, at work events. Employers have a duty to prevent and address such conduct. This includes:
- Clear policies: Articulate a zero-tolerance stance on harassment, including at work functions.
- Training: Educate employees about acceptable behaviour and the consequences of misconduct.
- Prompt action: Investigate complaints swiftly and impartially, and take appropriate disciplinary action where necessary.
Employers should be mindful that intoxication is not ordinarily an excuse for harassment, and that liability may attach even if the conduct occurs outside normal working hours but is connected to a work event.
Cannabis use: Private rights and workplace realities
The legalisation of cannabis for private use in South Africa, confirmed by the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince (2018), has complicated the regulatory landscape. While adults may use, possess, and cultivate cannabis in private, its use in public spaces, including workplaces, remains prohibited. The Cannabis for Private Purposes Act 7 of 2024 (CPPA) further clarifies that the workplace is not a private space, and employers retain the right to prohibit the use, possession, or cultivation of cannabis at work.
The Labour Appeal Court’s decision in Enever v Barloworld Equipment South Africa (2024) is particularly instructive. The Court held that while employers may implement zero-tolerance policies, these must not be so broad as to infringe on employees’ rights to use cannabis privately, especially where such use does not impact workplace safety or performance. Key takeaways from the case include:
- No blanket prohibition: Employers cannot impose a blanket ban on cannabis use that extends to private, off-duty conduct unless it affects the inherent requirements of the job.
- Role-specific considerations: The nature of the employee’s role is critical. For desk-bound employees not engaged in hazardous work, a positive cannabis test may not justify dismissal if there is no evidence of impairment.
- Impairment vs. presence: Cannabis can remain in the bloodstream long after its effects have worn off. Employers must distinguish between mere presence of the substance and actual impairment affecting job performance.
- Policy clarity: Substance abuse policies must be clear, specific, and communicated to all employees. They should outline the rules, testing procedures and consequences for breaches, while accommodating legal rights and medical use where appropriate.
Practical guidance for employers
- Develop comprehensive policies: Employers should have a zero-tolerance alcohol and drug policy that clearly and accurately reflects the employer’s position. The policy should prohibit any trace of alcohol or drugs in an employee’s system when the employee reports for duty and/ or performs their work. This policy must, however, take into account that cannabis is legal for private use and the inherent requirements of the jobs of employees in relation to the levels of cannabis in the bloodstream when reporting for work.
- Respect privacy and rights: Allow for private, off-duty use of cannabis where it does not affect workplace safety or performance, in line with the Enever judgment.
- Implement fair testing: Obtain employee consent for testing, ensure reliability of tests, and consider both the nature of the role and the impact of any positive result.
- Accommodate medical use: Where cannabis is used for medical reasons, require appropriate medical certification and assess the impact on job performance.
- Disciplinary action: Base sanctions on the nature of the role, the degree of impairment, and the risk posed to the business and other employees. Dismissal may be appropriate in safety-critical roles or where impairment is evident.
Regulating substance abuse in the workplace is a complex but essential task for employers. It requires a careful balance between safeguarding health and safety, respecting employee rights, and maintaining productivity and morale. Clear, well-communicated policies, consistent enforcement, and a nuanced approach to issues such as cannabis use are vital. Employers must also be vigilant in managing risks associated with alcohol at work events and in addressing the intersection between intoxication and harassment. Ultimately, a proactive and informed approach not only ensures legal compliance but also fosters a safer, healthier, and more productive workplace for all.
