Drug Testing in Employment

SA Society of Occupational Medicine

May 2005

Andrew BreetzkeBA LLB; PG Dip Employment Law

D.I. Management Solutions (Pty) Ltd

INTRODUCTION

“It should be borne in mind that dealing with the problem of drug and alcohol dependence in the workplace is difficult.”

Pretorius et alEmployment Equity Law

Lexis Nexis 2004

Why?

The Players

• Labour Relations Act 1995• Section 188 – dismissal based on incapacity• Schedule 8 – code of good practice: dismissal

• Employment Equity Act 1998• Prohibition on medical testing• Discrimination

• Occupational Health and Safety Act 1993• Duty on employer to ensure working environment is

safe and without risks to health

Testing for Dependency - USA

• Americans with Disabilities Act•Distinction: legal and illegal drug use•Habit forming drugs – illegal; medically

prescribed drugs – legal•Testing for illegal drugs is not regarded as

“medical examination”•Being drug free is consistent with business

necessity – therefore no protection – no accommodation

•Is protection for those overcoming drug problem/in a treatment program

Testing for Dependency - SA

• Employment Equity Act•Medical test = test, question, inquiry, or other

means designed to ascertain whether an employee has any “medical condition” – very wide

•Substance dependency has elements of physical and mental characteristics that can be regarded as medical conditions

•Medical testing allowed on specific grounds– Where legislation permits– Where justifiable in the light of medical

facts, employment conditions etc

THEREFORE:

CAVEAT:

It is very easy for the medical testing of employees to be

regarded as unfair – and possibly discriminatory.

SOLUTION: GENERAL

• Remember: our law recognises drug dependency as a form of incapacity

• Judicious rather than officious approach• Medical testing should not only aim at identifying

dependence, but also treatment/response• Must be a policy setting out prohibition etc• Duty to treat as a form of incapacity• Discipline should be implemented for performance,

health and safety violations etc – not addiction

SOLUTION: NB POINT

• If an employee refuses a reasonable request to take a test and the surrounding circumstances indicate that the employer’s prohibition against drug use or dependence has been violated, the refusal may justify disciplinary action (and even dismissal).

• Tanker Services (Pty) Ltd v Magudulela (1997) 2 LAC 8.11.1

• SACCAWU v Hessel’s Cash and Carry (2000) 9 CCMA 8.11.6

• Shange v Clifton Prep School (1998) 7 CCMA 8.11.8

SOLUTION: THE PROGRAM

• Policy• Supervisor Training• Employee Education• Employee Assistance• Drug Testing

Testing will only be found to be fair in cases where these elements are in place.

THE MEDICAL PRACTITIONER

• Understand the extent of medical testing in EEA

• “sound ethical and technical practice”• “professional independence and impartiality”• Informed consent, confidentiality• Right to appeal• Role is also to promote health,

accommodation etc• Information must be specific – for the work

envisaged

Drug Testing in Employment

SA Society of Occupational Medicine

QUESTIONS

Andrew Breetzkeandrew@dims.co.za

082 823 7496