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.”