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Alcohol and drugs in the workplace
Employees arriving at work with alcohol smelling on the breath, employees consuming alcohol during working hours, employees missing days (or even weeks) at work without justification, or with lame and feeble excuses (but never a medical certificate, or perhaps even with a medical certificate every time) and employees slipping out during lunch break “for a quick one” – all this seems to be a problem which is on the increase – with a resulting increase in problems for the employer.
The problem is not restricted only to alcohol – it extends to any substance having a narcotic producing effect
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Lets analyze this problem – what is the adverse impact for both employer and employee?
Firstly, this type of behaviour constitutes misconduct – and I trust that all employers have a company policy in place, that has been communicated to all employees, regulating the consumption of alcohol on company premises, and also off company premises, where it might impact adversely on the employer, the employee, or the employee’s ability to perform his/her duties.
If the employer has no such company policy in place, then that employer has a problem, namely that he cannot take disciplinary action against an employee for breaking a rule that does not exist.
O.K – we accept that not every rule has to be reduced to writing, on the basis that some rules are so well known that they do not have to be put in writing. But it will greatly complicate matters if there are no such rules in the workplace, and it will make for much smoother sailing if the rules are in place.
So let’s just accept and apply the principle that “if it is forbidden, then put it in writing.”
To be accused of “having presented for work after having consumed alcohol (or a substance having a narcotic producing affect), or with alcohol smelling on the breath”, the employee does not necessarily have to be plainly intoxicated.
He need not necessarily have had to have consumed a sufficient quantity of alcohol so as to have placed him “over the legal limit” – currently 0,05%.
Being an act of misconduct, it is obvious that dismissal may result if the employee is found guilty after the employer has followed a fair procedure. Thus it is a serious matter.
It would be sufficient for the employee to be in that situation where his abilities have been impaired, where his sense of judgment and reactions or other faculties have been affected, or where there is a visible affect on his behaviour that would not normally be the case if he were sober.
So it is not merely the smell of alcohol on the breath of the employee that is the deciding factor – there are the other factors mentioned above that must also be taken into account.
The degree of drunkenness must be tested and employers are permitted to ask the employee to submit to a breathalyzer test, or to a blood test. Obviously the blood test can only be done under the supervison of or by a suitably medically qualified person,
A refusal by the employee to undergo any such tests would be seen as an aggravating factor, because the employee is in fact being offered an opportunity to prove his/her innocence.
The breathalyzer test can be carried out by the employer, on the company premises, by a person who has been trained in the proper use of the instrument.
The employee’s consent to undergo either test must be obtained in writing, and the employee is entitled to have a representative present to witness the procedure.
The employer should also have another person present to witness the procedure on behalf of the employer.
In addition to the test, the employer must make a note of the employee’s general appearance (is he/she untidy, disheveled, etc ) general attitude (aggressive, abusive, confrontational) are the eyes bloodshot, is the speech slurred, is the employee unsteady on his/her feet (carry out the “white line test”) and so on.
All these observations must be reduced to writing and signed both by the observer and the observer’s witness.
The establishment of a blood-alcohol content that is above the legal limit is not, in itself, sufficient evidence to dismiss the employee.
The other factors must be established, as well as whether or not the employee is able or unable to perform his or her tasks to the required standard, and the level of danger to life and limb or the employer’s property should the employee be allowed to continue working, as well as the affect on the rest of the employees should this employee be allowed to continue working in an “imbibed” state.
Employers are faced with this problem on a regular basis. Abuse of alcohol or drugs on the workplace while on duty, the consumption of alcohol or drugs before coming on duty, with all sorts of excuses such as “ it is from the night before” or “it is cough mixture.”
Employees sometimes “ nip out for a quick one” during their meal break, or field sales staff “have a few” while entertaining clients to lunch.
There is any amount of case law on dismissals for this type of offence, in its varying forms
The important thing that comes out of the case law is the Employer's Policy on Alcohol and Drug Consumption on or off the Workplace.
The policy should be clear – firstly, zero tolerance. Do not allow for limits in your policy.
Secondly, the policy must stipulate your test procedure. For example, a breathalyser test for alcohol will be required - or a urine test for drugs. The policy must state that note will be taken of circumstantial evidence, such as bloodshot eyes, slurred speech, the smell of alcohol on the breath, unsteadiness on his feet, dishevelled appearance, aggressive or abusive or arrogant or out of character behaviour, and the inability to walk a 10 metre straight line with the arms held out horizontally.
There should be a proper “ test sheet” on which the above items are listed, together with space for the comments of the person conducting the test. There should be a witness present for the employer and a witness present for the employee to ensure fairness of the procedure.
The employer's rules regarding alcohol or drug consumption whilst on duty, or off duty before coming to work, must be very specific and must warn employees that should the rural be contravened, disciplinary action will follow which may result in dismissal.
The policy must also make mention of the regulations in the Occupational Health and Safety Act regarding this Issue.
In SACCAWU obo Ntonga & another / A1 Fisheries [1999] 8 BALR 943 (CCMA) it was found unnecessary for the employer to prove how much alcohol had been consumed - only that liquor had been consumed.
In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was found that whilst the employee denied that he had consumed liquor, he refused counselling and rehabilitation assistance on the grounds that he did not have a drinking problem, and his dismissal was therefore found to be fair even on a first offence and withy a clean disciplinary record.
It was stated that if an employee denies that he has a drinking problem and refuses assistance, then it is simply treated as a misconduct.
In SACCAWU obo Mfengwane v Bonus [1998] 5 BALR 595 (CCMA), it was also ruled that when an employee denies that he has a substance dependence problem, counselling is unnecessary - the matter is treated as a misconduct in terms of the employer's policy.
In SALSTAFF obo Venter / Metro Rail [1999] 1 BALR 59 (IMSSA) matters took a different twist.
The employee was dismissed on several charges of being under the influence of alcohol on duty.
The employee denied that he had been under the influence or that he had endangered passengers.
During the hearing it was revealed that the employee regularly worked shifts of 18 hours without a break.
The arbitrator found that under normal circumstances, dismissal in this case would have been justified.
However, the arbitrator found that the conditions in which the grievant had worked were not normal, and that the working hours required of him did not allow for any recreational time.
In fact, his life consisted of working and sleeping.
It was ruled that rather than dismissal, the employer should have addressed the root of the problem and should have changed the employee's working hours.
The employee was accordingly reinstated in employment retrospectively.
This shows that employers must err on the side of caution and should conduct a proper and full investigation to establish amongst other things, the causes of the substance abuse problem
What kind of problems does alcohol cause in the workplace ? What elements need to be present before it can be said that a worker “has a drinking problem?”
Generally, if a person’s drinking habits causes an adverse effect on his home life, his work life ( or both), then that person can be said to have a drinking problem.
We are more concerned with the problem affecting the workplace – and if the employee’s output in terms of quantity or quality is affected, or his attendance record in terms of frequent absenteeism ( mostly without authority) deteriorates, or his use of sick leave (often one day at a time with no medical certificate produced) becomes more frequent, then be warned – there is a problem.
There has been some argument on whether the problem is classed as misconduct – the employee having broken a rule or standard of behaviour in the workplace – or whether it is classed as incapacity – the employee is rendered incapable of performing his duties due to the alcohol problem
This is arguable – in my view, it could be either. The fact isthat what the employer is faced with is a non-performing employee who has a problem that is seriously impacting adversely on the employer’s business, and which is costing the employer money – all of which the employer is not responsible for.
Remember that the important thing here is not to diagnose whether the employee is an alcoholic or not – you only have to know that the employee’s drinking habits are impacting aversely on the workplace.
That knowledge is sufficient to justify the employer taking action.
The person with a drinking problem is an expert at hiding the problem. He will go out of his way to “act sober.”
He will be extremely co-operative, willing to undertake any task given to him, even if it is outside the general parameters of his job description. There will also be frequent absences from the work-station, with dozens of different excuses to justify this – weak bladder or bladder infection , upset stomach, bad headache, and so on.
These absences are of course “drink breaks.”
Very often the problem is compounded because the employee’s immediate supervisor, while suspecting that “something is going on”, very often ignores his suspicions, overlooks (condones?) the frequent absences from the workstation, or even ignores the increasing absences from the workplace for a day or even 2 days at a time.
He also ignores other warning signals – that the employee’s absence always occurs on a Monday, and that he is never available for Saturday overtime.
Another problem is that co-workers often will cover up for the errant employee – making excuses for him when his absence is questioned by the supervisor, and not realizing that by covering up they are in fact making his problem worse.
Whatever the case, the problem must not be overlooked. Further, it is one of those problems that cannot be treated gently – “I will have a chat with him” does not work. The problem is serious, and must be seriously addressed.
There are a number of options open to the employer on how to address the issue, some of which may be straight disciplinary action, a written (or even final written) warning, or the employer may choose to follow a procedure of counseling, offering assistance to the employee, and so on.
Another perplexing aspect is that the problem may be caused, not so much by the employees drinking on the job or intoxication at work, but rather by drinking and intoxication off premises and outside of working hours, with the employee being stone cold sober during working hours. More on that next week.
So what do you do when you find that you have an employee who may be an alcoholic, but who certainly has a drinking problem which is affecting his work or the workplace.
Firstly, get as much information as possible from his supervisor, or line manager.
How longs has the problem persisted ? Specifically in what way is it affecting the job processes ?
How frequently is he absent or late because of this problem ? Check his attendance records and extract the information.
How frequently does he go off sick ? Check his sick leave usage.
Build up all the information that you possibly can, and then write the employee a letter inviting him to attend a meeting to address issues regarding his performance.
Remember, this is not a disciplinary hearing. It is a case of incapacity (poor performance) – not misconduct.
The meeting will be attended by the employee’s line manager or supervisor, and a senior manager to act as Chairperson.
At the meeting, present to the employee all the facts that you have at your disposal. Discuss each one in turn, and explain how this is affecting his performance and the job processes in general.
Keep careful and detailed notes of the proceedings.
The employee must explain why he is failing to achieve the required work performance standards and he must justify his absenteeism, late-coming, and so on.
Eventually the discussion will turn to the drinking problem.
Occasionally, the employee will admit straight out that he has a problem and that he needs help. Try to establish the reasons for the drinking. He may have financial problems, he may be involved in a messy divorce, children not doing well at school, illness of a loved one, anything like that – or it may be a wrok related problem.
Most often, the employee will deny that the drinking is a problem. The typical response is that “ it is not a problem, sure I enjoy my odd drink or two after work, but I can stop any time I wish to.”
If you get that sort of response, then you reply by stating “we are very pleased to hear that it is not a problem for you and that you can stop any time you wish to. We now require that you stop drinking immediately, and we require an immediate improvement in your attendance and late-coming.
All of this must be carefully recorded, as well as details of what the employee has undertaken to do to fix the problem of his poor performance.
This must be communicated to the employee in writing, together with a date by which he must comply with whatever has been agreed to, and a warning stating that should he fail to achieve the required work performance standard by (allow a reasonable time – say one month) then further procedures will follow which mat lead to his dismissal.
Alcohol or substance dependency in employees is difficult to identify. Nearly all alcoholics become expert at hiding the symptoms of the condition, and it can go undetected for years. In many cases, it will be found that alcoholics, as a result of their condition, also become astute liars, and will go to almost any lengths to hide the condition. These are not unfair criticisms of alcoholics in general – these are facts which arise from the condition of the addiction. These are conditions that are inflicted on the alcoholic as a result of his/her dependency problem – things that the alcoholic would never indulge in were it not for the dependency problem.
The alcoholic is in fact a person who is sick – and cannot help himself or herself. They need to be helped – they cannot help themselves. And this, in part, is what makes the problem so difficult.
Remember that an employee arriving at work with alcohol smelling on the breath is not necessarily indicative that the employee has a substance dependence problem. It merely indicates that the night before, he had a good party – may even have been drinking into the early hours.
To detect the condition, probably the best barometer the employer has is firstly the attendance record. A definite pattern will be detected if the record if properly analyzed.
For example, a pattern showing that absenteeism (or late-coming) occurs regularly on a Monday, or on the day after pay-day, or the day after a public holiday. Supervisors must be encouraged to report those employees who come to work, particularly on a Monday or that day after a public holiday, with what is commonly known as “bubbleaas.”
The classic hangover. That obvious “morning after the night before” condition. During the course of the morning, the Supervisor should closely monitor the employee – frequent trips to the toilet, drinking large quantities of water, sucking peppermints or other sweets, turning his face away from you when you speak to him, etc – or holding his hand in front of his mouth when he speaks to you. These indicators will taper off as the day progresses – as the employee slowly recovers from the night before.
After lunch, in fact, the employee will be quite “perky” and a lot more bright-eyed and bushy-tailed than he was at 7 am. All of this is evidence for future use.
A second barometer is the employee’s work performance – a previously good worker starts to display symptoms of poor work performance. Quality of the work deteriorates, quantity of output suffers adversely, work gets “behind” , reports are late, all that sort of thing. When confronted, the employee will offer to work overtime “to catch up.” An agreement is reached that the employee will work on Saturday for the whole day, and on Sunday for a half-day to get things up to date. On Monday, it is found that the employee came to work on Saturday, stayed for only 2 hours, and then left. On Sunday he did not pitch at all.
He offers some lame excuse that :my wife was sick and I had to take her to the doctor,” or something equally unacceptable.
Normally, the person who is simply a “social drinker” will not drink to excess at a function – or at home, for that matter. He will control his intake, knowing when he has “reached his limit.”
The person who has or who is heading for a “drinking problem” is the person who, having taken the first drink, won’t stop until the bottle is empty.
He is the person who makes a point of “I drink my 5 double whiskeys every night and I am as sober as a judge.”
Or “ I finish my 6-pack and 3 doubles every night and it does nothing to me – I can drive anything – I am stone cold sober.”
And this is the person who will, without fail, vehemently deny that he has been drinking, when he actually smells like a walking brewery, or when asked the question “How much did you drink last night ?” he gives the classic reply that “ I only had 2 beers, and I had the second beer at 9 pm – I had nothing after that.”
This is the class of drinker that we are concerned with. We are concerned because he has a problem and because he is an employee, his problem unfortunately also becomes the employer’s problem – up to a point.
The problem is compounded by the fact that the problem-drinkers behaviour outside of working hours and off the company premises can also become the employer’s problem.
Following on this , emerges the necessity for firstly having in place an effective Alcohol Policy which is lawful, fair and attainable, and also a fair and lawful means of testing suspects at work to ascertain the levels of alcohol in the blood, by qualified staff with approved and reliable testing equipment.
It would be disastrous if an employee, having been dismissed for breach of the Alcohol Policy, was able to show at Arbitration that your testing equipment has a 50% or even 30% margin of error, or that the last calibration date was 2 years ago. More on those issues next week.
It is repeated that it is managements responsibility to prevent alcohol abuse in the workplace.
Therefore management are responsible for compiling the Alcohol & Drug Abuse Policy and management are responsible to ensure that employees comply.
By “management” we refer to every person in a supervisory position who has staff reporting to him.
The ADA Policy must not be so strict as to make problem employees fearful of coming forward – such a policy will only serve to drive the problem drinkers underground – and this compounds the problem because besides being a problem drinker, the employee becomes a secret drinker as well.
Each company must have a policy tailor-made to suit its own requirements – and it is quite useless for top management to simply instruct an H.R. clerk to “draw up some sort of rules to handle the drinkers in this place.”
If the employer wishes to address the problem effectively, then the formulation of the ADA Policy is important and requires input from all levels of management, and a fair amount of policy content will be decided upon from the results of past experience in dealing with the problem.
Employers can of course, have a very simple policy – the “rule by fear” type of policy, which states, very simply, that alcohol or drug problems will not be tolerated and will result in dismissal.
But dismissing people can be (in fact, it is ) a very expensive business, in terms of money spent on training the employee - there is always a large investment in all employees in terms of time and money – then the employee is dismissed, and more time and money invested in a new employee. The cost of advertising the vacancy, time spent in interviewing, administration costs, probably paying a higher salary than the dismissed employee was paid, all come to mind and add up at the end of the day.
So it is not always a good idea to simply state “drink or drugs = dismissal.”
Equally obviously, an employer does not offer or arrange counseling, re-habilitation, financial assistance , sympathy etc on an on-going basis, time and time again, into eternity. That is not the idea of putting in place the ADA Policy.
The policy (in terms of assistance, counseling, re-habilitation, etc ) will only be applied to those employees who have (or who demonstrate that they have) a genuine desire to be helped, and where it can be reasonably concluded that the re-habilitation program will result in success for this employee.
In other words, the employer is not expected to “flog a dead horse.” If an employee undergoes the re-habilitation program as stated in the ADA Policy, and later reverts to the old habits, then the end of the road has been reached. The employer does not offer the program again – rather, procedures are then followed to secure the fair dismissal of the employee.
Remember , the employer is not in the business of re-habilitating alcoholics, problem drinkers and drug addicts. The employer is only trying to assist those in his employ who have such problems, to the ultimate benefit of both parties.
It is a fact that most persons with such problems will usually, when confronted, vehemently deny that it is a problem, they will be emphatic that they do not need assistance, and that they can stop any time they wish to.
In such cases, the employer cannot force the employee to undergo re-habilitation – but he can demand that, since the employee has affirmed that it is no problem and that he/she can stop the drinking (or drugging) immediately, the employee must then stop the habit immediately or undergo the re-habilitation program, or face dismissal.
Rather than face dismissal, the employee will then (reluctantly) agree to the re-habilitation, but it has been found that persons who undergo the re-habilitation with anything less that an admission that they need help, and with anything less that full and genuine commitment to the program, very seldom succeed in the program.
Within a very short time of completing the program, they revert to the old habits – again affirming that “its really no problem – I can stop any time I like. I was in re-hab for 6 weeks and never touched a drop. That proves that I can take it or leave it – it really is no problem.”
The Alcohol & Drug Abuse Policy must be designed to help those admit that they have a problem and who wish to be helped.
The easy way out, of course, is to simply have a policy stating that any employee found guilty of alcohol or drug abuse etc in the workplace will be subject to disciplinary action, which may lead to dismissal, and the employer’s Disciplinary Code will state that the sanction for such offenses will be a final written warning (on the first offense) and dismissal on the second offense.
But it is an expensive business (in terms of both time and money) to dismiss employees and employ a replacement.
That cannot be denied. The financial implications of this must be weighed up against then financial implications of offering assistance to errant employees.
It must be empahsised that there is no obligation the employer to offer assistance – the Code of Good Practice – Dismissal merely states that the employer should consider the matter.
Thus it is for the employer to decide – and generally, assistance will be offered only to those employees who demonstrate that there is a reasonable chance that rehabilitation will be successful, that the employee genuinely realizes that he has a problem and that he needs help.
The latter is of course a prime requirement. The employee who insists that the drinking or drugging is not a problem for him and he can stop at anytime, and does not need help, cannot be helped - and it is a waste of time to try.
The policy will emphasize that all assistance and counseling is voluntary, and no employee is forced to submit to rehabilitation if they do not wish to do so. However, employees who do commit to it must make a full commitment.
Conditions can include factors such as that the employer will make funds available to the employee to pay the costs of rehabilitation, but this will be in the form of a staff loan and the employee must re-pay the amount at an agreed monthly amount.
Other requirements, in addition to the requirement that the employee agree to undergo rehabilitation, would be that the employee must join the Alcoholics Anonymous (or other suitable organization) and that the employee must attend all meetings of that organization, and that he must remain sober for at least 2 years after completing the rehabilitation program.
Stipulate further that should any of these conditions be breached, further assistance will not be offered, but disciplinary action will be invoked which may lead to dismissal.
Employers can seek the advice of organizations such as SANCA (The South African National Council on Alcoholism and Drug Addiction) or Alcoholics Anonymous or similar organizations, to gain advice and information on formulating a policy, the do’s and don’ts of handling alcoholism in the workplace, and so on.
It must be remembered that the employee’s family also plays a very big part in all this, and consultation (or counseling) with the employee’s spouse could well form a very big part in the process.
The policy can provide for voluntary testing – an employee who arrives at work after a heavy party the night before can submit to a voluntary test – if found to be outside the policy limits, he can take leave for the day with no further action against him.
The policy can provide for random testing – especially where there is a large number of employees in the workplace. This can be done in a number of ways to ensure impartiality. On entering the workplace, the employees draw a number form a box and all even numbers are tested or every second odd number is tested, and so on.
Compulsory testing can be done where there are obvious signs of alcohol consumption or drug abuse – the smell of alcohol on the breath, bloodshot eyes, unsteady on the feet, attitude (aggressive or confrontational) turning the face away from the person being spoken to, shielding the mouth with a hand when speaking, unusually disheveled appearance, and so on.
The employer’s policy should basically follow these guidelines:
[a] establish that this is an ongoing problem and not a once-off incident.
[b] meet with the employee and his representative if required, or with the employee and spouse.
[c] discuss the problem – try to establish when it stated, for how long has it been continuing, try to establish the cause of the problem. If you can identify the cause, you can teat the problem far more successfully.
[d] try to get the employee’s agreement that he/she will go to a professional organization for counseling – such as Alcoholics Anonymous, SANCA, and so on.
[e] discuss and agree on what the employee will do to assist himself to stop alcohol consumtion or drug usage.
[f] discuss and agree on what the spouse/family will do to assist him.
[g] discuss and agree on what assistance the employer will provide – financial, time off to attend counseling sessions, time off for re-hab if necessary, and so on.
It is no easy task to address this problem.
The employer is certainly, in the majority of cases if not in every case , ) faced with a flat denial by the employee that a problem exists.
In addition, the problem drinker will advance a thousand reasons to try and justify his drinking or drug habits.
To give you a very simple example, run a practice session on a friend or family member who is a cigarette smoker. Ask him why he smokes, of what benefit is it to him (in terms of good health and financially ) to smoke, try to put reasons to him why he should stop smoking.
You will get a thousand reasons as to why he should smoke, or why he does smoke, dozens of reasons to justify burning his money away, plenty of reasons why (for him) it is not a problem, he can afford it, his health is fine, it has no adverse effects on his family, it is his body and he can do what he likes with his body, his smoking habit does not deprive his family of anything that they need, and so on
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He will skillfully avoid or gloss over those issues of the detriment to his health, the coughing fits early in the morning, his shortness of breath, the fact that his habit costs an average of R500 per month, and so on.
With the problem drinker or drug user it is the same. It may take some time before he admits that he has a problem and needs help. It is common knowledge that the alcoholic cannot be helped until the time when he reaches that stage – the acknowledgement that the problem exists, the acknowledgement that, without help, he is powerless to solve the problem, and thus the acknowledgement that he needs help.
Until that stage is reached, the employee will strongly deny that a problem exists, he will vehemently defend his stance that he can quit any time he wishes to do so, and he will strongly deny that he needs help.
When the employee is in that stage, there is nothing much the employer can do – you cannot force the employee to submit himself to re-hab or counseling.
For this reason, the employer’s Disciplinary Code & Procedure Policy must provide for disciplinary action against problem drinkers in the workplace, because if the employee will not accept help with the problem, the only solution may be dismissal.
Obviously, this can also be handled in terms of incapacity – poor work performance if that situation prevails. But there are those problem drinkers who perform their duties expertly and without fault when they are under the influence of alcohol or drugs, and thus the situation may exist that despite being “tanked up” on the job, the employee’s work performance cannot be faulted – and that is where disciplinary action is resorted to.
If there are problem drinkers in your workforce, address the issue – don’t leave it with the notion that “ if he wants to drink himself to death, then that is his business.” It is very much your business.
If the issue is left unattended, what message are you sending out to the rest of the workforce ? I will tell you.
You are sending out the message that drug usage and alcohol consumption on the job is o.k. and quite acceptable.
I do not need to elaborate on the consequences of that.
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