Drug Testing in Employment

1. Drug Testing in Employment SA Society of Occupational Medicine May 2005 Andrew Breetzke BA LLB; PG Dip Employment Law D.I. Management Solutions (Pty) Ltd

2. INTRODUCTION “It should be borne in mind that dealing with the problem of drug and alcohol dependence in the workplace is difficult.” Pretorius et al Employment Equity Law Lexis Nexis 2004 Why?

3. 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

4. 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

5. 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

6. THEREFORE: CAVEAT: It is very easy for the medical testing of employees to be regarded as unfair – and possibly discriminatory.

7. 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

8. 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

9. 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.

10. 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

11. Drug Testing in Employment SA Society of Occupational Medicine QUESTIONS Andrew Breetzke andrew@dims.co.za 082 823 7496