Your employees relax in the office pub on a Friday afternoon. They get a bit tipsy and one employee has a car accident on the way home. Are you, as the employer, liable for damage caused to a third party by an intoxicated employee?
In South Africa, employers can be held responsible for damage caused to others by an employee acting within the course and scope of their employment. This is called vicarious liability. Our courts have not yet pronounced on whether an employer is liable for damage caused by an employee who has consumed alcohol above the prescribed legal limit, but who is not acting in the course and scope of his employment. According to the AA of SA:
In South Africa, the legal limit is a breath alcohol content of 0.24mg per 1,000ml, or a blood alcohol limit of 0.05g per 100ml, a fact that should be burnt into every motorist’s memory. This begs the question: ‘what does this mean for me, and what specifically constitutes being over the limit?’
The rule of thumb is a maximum of one unit of alcohol per hour, which constitutes 10ml of pure alcohol, based on an adult weighing 68kg. Our bodies can process only one unit of alcohol each hour. However, it is important to be aware that if you weigh less than 68kg your body will need more time to process the same amount of alcohol.
In Canada, courts have held employers liable for harm sustained by employees involved in accidents following work functions from which they drove home over the legal limit. In Jacobson v Nike Canada the court held that if the employer had at least attempted to prevent its employee from driving home by confiscating his keys or calling a taxi for him it would have been absolved of a considerable amount of its liability.
Although this specific issue has not yet been dealt with by South African courts, it is likely that when faced with such a matter a South African court would probably decide the matter in much the same way as the Canadian courts did.
The rationale behind the decision is that an employer hosting a function owes a duty to its employees. After a function, an employer should, at least, confiscate the keys of drunken employees and offer them a ride home
Whatever applies to alcohol would apply, equally, to drugs.
Drinking and working
Can or should you allow a forklift driver to drive a forklift at work if you know that he has been drinking at work, but a test reveals that his blood alcohol level is within legal parameters? Of course not!
All employers must have a written Alcohol and Drug Abuse Policy in place, which provides that the employer’s rule is “Zero tolerance.”
To reduce any liability you may face, as an employer, as a result of an intoxicated patron driving home whilst over the legal limit, or an employee drinking on the job, you should have a policy in place that each employee signs and that you publish in a prominent place that:
- You have a zero-tolerance policy towards the consumption of alcohol in the workplace; or
- If that zero-tolerance policy is relaxed at an office function, the employer does not condone employees driving whilst over the legal limit, nor will it accept liability for any harm which may arise from an employee driving over the legal limit.
- To this end, attempts at preventing employees from driving over the legal limit may include:
- making breathalysers available for employees to test whether they are within the legal limit before driving home;
- providing drinks tickets to restrict the amount of alcohol each employee may consume; and/or
- providing the details of a taxi service.
- The policy must clearly stipulate what the breathalyser testing procedure shall be. For example, before the test procedure commences, the employee is entitled to have a representative to assist him, and the employer will also have a representative present as a witness. The test procedure will require the employee to blow on a reliable and properly calibrated breathalyser, preferably one which also measures the blood alcohol content as well as the alcohol content on the breath. The policy must state that the breathalyser will be calibrated in the presence of the employee and his representative, in order to avoid any arguments regarding the accuracy of the instrument.
- The policy must state that employees who are suspected of having consumed alcoholic liquor or drugs will be required to undergo the breathalyser test. Note will be taken of the employees appearance, bloodshot eyes, slurred speech, attitude – aggressive or abusive – and the employee will be required to walk a white line painted on the floor with his arms held out horizontally. Any of these issues which bring a negative result, count against the employee and constitutes circumstantial evidence which entitles you to reach a logical conclusion that the employee has been consuming or appears to have consumed alcoholic liquor or drugs.
- Employers must also incorporate into the policy the provisions of the Occupational Health and Safety Act, Act 85 of 1993, in particular general safety regulation number 2A, which addresses the issue of intoxication. This regulation states that “any employer or a user, as the case may be, shall not permit any person who is, or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace. It goes further to state that no person at a workplace shall be under the influence of, or have in his or her possession, or partake of or offer to any other person intoxicatingly go or drugs. This means that if an employee who is under the influence of alcoholic liquor or drugs, or who appears to be under the influence of alcoholic liquor or drugs, arrives at the work premises, the employer is legally obliged to refuse him entry to the premises. The words in this safety regulation “or who appears to be” vitally important. The testing procedure outlined above, if producing a negative result, will entitle the employer to conclude “this employee appears to be under the influence of alcoholic liquor or drugs – therefore I will not allow him entry to the premises.”