Before the year-end function: what General Safety Regulation 2A says about alcohol and drugs at work

Fitness for work the next morning is an occupational health services question, not a party-planning one.

It is the third week of November. Somebody in HR has booked the venue, the caterer and a DJ. Somebody in safety has a question that no one wants to ask in a meeting: what happens if a person arrives at the plant on Monday morning still carrying Friday night?

Regulation 2A answers part of that. The part it does not answer is where employers get into trouble.

What regulation 2A says

The text is short enough to read in a minute.^[1]

1. 2A(1): Subject to subregulation (3), an employer or a user 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.
2. 2A(2): Subject to subregulation (3), no person at a workplace shall be under the influence of, or have in his or her possession, or partake of, or offer any other person intoxicating liquor or drugs.
3. 2A(3): Where a person is taking medicines, an employer or user shall only allow that person to perform duties at the workplace if the side effects of the medicine do not constitute a threat to the health or safety of that person or others.

Three phrases deserve a second look. "Appears to be" means the standard is how a person presents at the workplace, not only a laboratory result. "Possession" covers more than use. And subregulation (3) applies to prescribed or over the counter medicine too, which is a different conversation from alcohol or drugs.

What counts as a workplace

The Occupational Health and Safety Act defines a workplace as any premises or place where a person performs work in the course of his employment.^[2] A year-end function at a restaurant is not obviously a workplace. A person who drives a company vehicle to it, or who is back on site two hours later, may be. If you are unsure how the definition applies to your function, take legal advice before the invitation goes out.

Where zero tolerance can go wrong

Many employers have a rule that any positive drug test is misconduct, whether or not the person was impaired at work. The Labour Appeal Court looked at exactly that kind of rule in Enever v Barloworld Equipment South Africa (JA86/22) [2024] ZALAC 12, decided on 23/04/2024.^[3] The court found that dismissing an employee for testing positive for cannabis consumed off duty, under a blanket zero tolerance policy, was unfair discrimination under the Employment Equity Act and an automatically unfair dismissal, and ordered 24 months' compensation.^[3]

The reasoning matters. According to a law firm summary, the court said a policy that effectively bars off-duty use must have a rational link to health and safety in the job concerned. It also recognised that the position is different for people who report for duty intoxicated, who use cannabis at work, or who operate heavy or dangerous machinery.^[4]

Do not read that as permission for intoxication at work. Regulation 2A still applies, and an employee who is intoxicated at work can still face discipline. Read it as a reason to write your policy around impairment and job risk, not around a blanket result.

What a sound policy covers

You do not need a legal essay. You need a page that answers these questions in clear wording.

• Who is covered? Employees, contractors, visitors and anyone else at the workplace, as regulation 2A(2) says "no person".
• What is prohibited? Being under the influence at work, possessing, using or supplying alcohol or drugs at work, as the regulation sets out.
• How is "appears to be" assessed? Name who may act on observation, and how it is recorded fairly.
• What about medicine? Ask workers to tell their manager, or the health practitioner, if a prescribed medicine could affect safe work, as 2A(3) requires you to consider.
• How is testing used? If you test, say when, how and why. Section 7 of the Employment Equity Act prohibits medical testing unless legislation permits or requires it or it is justifiable in light of medical facts, employment conditions, social policy, fair distribution of employee benefits or the inherent requirements of a job.^[5]
• What happens next? Describe the steps after a positive observation or test, including a safe way home.

Where Care Net fits

Our medicals offer drug strip tests, multi-drug screening and multi-drug cup tests with chain of custody as add-ons at additional cost, where the job risk calls for them.^[6] We do not write your policy, and we will not tell you that a test can prove impairment on its own. We run the test you decide on, and we keep the record.

Before the function

1. Send a short reminder of the policy before the event.
2. Arrange safe transport home.
3. Brief supervisors on what to do if a worker appears impaired on Monday.
4. Keep the tone adult. People know what a year-end function is.

A good policy is not about catching anyone. It is about knowing in advance what you will do.

Questions people ask

This article is general information for employers and is not legal or medical advice. Read the regulations for the full requirements and speak to a qualified practitioner about individual health concerns.