What you need to know about drug testing in the workplace
The South African Occupational Health and Safety Act No. 85 of 1993 is the national legislation that protects employers, employees, and all business stakeholders from injury and death, and also covers various aspects of occupational health to ensure that the workforce and those who supplement and rely on it are protected at work. Every business in every industry can benefit from observing the law in this regard, especially where those businesses are affected by the overt and subtle dangers of drugs.
Employees and the OHS Act
Employees who use and abuse drugs during working hours or who arrive at work under the influence of drugs are putting themselves and their colleagues in danger. The OHS Act states emphatically that employees will take reasonable care for their own as well as their colleagues’ health and safety – as well as the health and safety of any other people who are affected by his actions or omissions. Someone under the influence of drugs can cause huge problems in this regard, especially by the irresponsible nature of drug abuse. Their absenteeism, errors on the job, as well as possible accidents not only cost time and money in terms of equipment and productivity, but can also endanger the lives of others.
As an employer, your duties include preventing employees from coming to and staying at work if you can clearly deduce that they are under the influence of drugs (or alcohol). As part of this prevention plan, you should include a policy on drug and alcohol testing, which every employee should be made aware of when they sign their employment contract. You have the right to conduct random or motivated drug and alcohol tests to not only protect your business, but your employees too. However, it’s important that you don’t infringe on employee rights in the process, which include:
1. Employee consent
Before you perform drug and alcohol tests, you need to gain consent from your employees. This can be gained if you have a full, contractual Occupational Health and Safety Policy in place, which is set out in the employment contract. The employee’s signature on their employment contract subsumes their consent for drug testing.
2. No undue discrimination
It’s important that you don’t single out specific employees for drug testing in a discriminatory way, but that random testing is indeed random. If drug testing is justified by the nature of an employee’s job (i.e.: heavy machinery operation that risks their and others’ lives), then gain their consent prior to testing.
3. Follow due procedure
If you need to search an employee for drug possession, it’s important to follow due procedure: respect the employee’s right to privacy; only perform same-sex searches (men search men, women search women); and have an unbiased witness present. If an employee refuses a drug test when you have adequate grounds to believe they are/were under the influence while engaged in their employment duties, they may face disciplinary action. However, be 100% sure that you are following due procedure according to the OHS Act.