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Thread: Testing employees for Drugs

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    Testing employees for Drugs

    Hi

    I am a manager at a restaurant and I suspect one of our kitchen staff of being on drugs. He shows all the signs, red eyes, lack of concentration and a general demeanor that fits with drug use. This employee was not always like this, the change has come about in the last few months. We do not have a written contract with this employee so I am unsure if I can just test him. And if I do, do I just fire him on the spot?

    How would I go about a test?

    Thanks in advance for any answers

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    Platinum Member sterne.law@gmail.com's Avatar
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    Hello -
    I will respond in more detail later, with particualr regard to testing procedures etc, etc.
    As to the fire on the spot, that can of course never happen. You will in all probability need to go through the incapacity procedures. Drug dependency is the equivalent of alcholism.

    This link will take you to my blog with an article on breathalyzerand lie detector tests which have similiar requirments a sdrug testing.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Let me ask you this from the outset - Does your employer have a disciplinary code in place regarding the use of alcohol or narcotics or reporting for duty under the influence of alcohol or narcotics?

    If you do not have such a code in place, you will not be able to take disciplinary action against the employee.

    Furthermore, even if an employee does not have a written employment contract with the employer, the employee will still be able to take the employer to the CCMA for unfair dismissal. The employee only need to proof that there existed an employment relationship, and obviously that he was dismissed and that such dismissal was unfair.

    It is important to remember that you will be obliged to take disciplinary action against the employee - meaning that you will have to suspend him, give notice of the disciplinary hearing, and the conducting of a disciplinary hearing.

    It must be remembered that drug-testing, according to my knowledge, can only be done by way of blood test, which test can only be performed by a medical practitioner. If you have a suspicion that the employee is intoxicated, it is my submission that you may subject the employee for testing.

    However, the mere fact that the test proves that the employee was intoxicated and the level of such intoxication, does not mean that the employee may be dismissed on that basis only.

    Certain other factors must also be taken into account, such as whether the employee is able or unable to perform his tasks, the nature of his tasks, the nature and responsibilities of his job, the dangers and risks of the work environment, etc.

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    Platinum Member desA's Avatar
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    Quote Originally Posted by emporacci View Post
    Hi

    I am a manager at a restaurant and I suspect one of our kitchen staff of being on drugs. He shows all the signs, red eyes, lack of concentration and a general demeanor that fits with drug use. This employee was not always like this, the change has come about in the last few months. We do not have a written contract with this employee so I am unsure if I can just test him. And if I do, do I just fire him on the spot?

    How would I go about a test?

    Thanks in advance for any answers
    I feel a sense of restrained outrage when I read posts like this - I'm sorry to say.

    Why are folks so quick to demonise, yet so slow to talk, discuss, counsel the person? If this matter has a direct bearing on the workplace, safety etc - then have a quiet chat with the person & tell him/her your concerns - perhaps with a witness in the room. This person has human rights too, & their dignity should be respected.
    In search of South African Technology Nuggets(R), for sale & trading in South East Asia.

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    I totally agree DesA.

    My only issue is that I have asked this employee many times over the past few months whether he has any substance abuse problems or any type of thing like that and he outright denies it. When asked about his red/yellow eyes he says they are just like that.

    If he is found to be abusing I am happy to recommend councelling and rehab facilities but not to pay for them. As far as affecting his work, it most certainly is so if I know he has a problem I cannot continue to employ him.

    Thanks Sterne Law, I will have a look at the article.

    Will update as I go along the procedure. Thanks everyone

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    Platinum Member desA's Avatar
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    That's very fair then. Thank you for the background information. It seems that you've done your level best.

    Hope it all works out for you.
    In search of South African Technology Nuggets(R), for sale & trading in South East Asia.

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    Platinum Member sterne.law@gmail.com's Avatar
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    You can not force someone to go for rehab or help, not only from a legal point but also it is known fact that this will not help.
    I suggest you put the employee in a performance review concerning their poor work performance. The employee can use drug dependency as a defence, whereafter it is suggested to assist them. If the employee does not say they have a problem, either of own accord or under your prompting you can follow a few paths - Continue the poor work performance route and/or make a sanction of them seeking help. Can include a suspension while undergoing help or they continue to work and undergo counselling. Part of the sanction can include that they will be tested regulalry.
    Remember that many times the employee does not want to admit to the problem because they fear that they will lose their job. In light of the fact that you wish to help them perhaps you should have a chat of an infromal nature saying that they will not lose the job, at this juncture, but if he/she does not egt it sorted out, then job loss is inevitiable.
    the employer is not obliged to pay for the treatment or to pay the employee when the employee is away.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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