Drug testing policies must comply with the law, as well as be fair and respectful of employees’ rights, protecting both them and the company
In the recent case of Enever vs Barloworld Equipment South Africa, the constitutional court ordered Barloworld to give Berndadette Enever 24 months’ pay in compensation for unfair dismissal after she had repeatedly tested positive for cannabis at work, even though she only consumed cannabis at home.
Given that cannabis stays detectable for weeks after use, this landmark judgment should encourage employers to align their drug testing policies with their employees’ right to consume cannabis at home, in the evening before coming to work the following day. Employers should invest in drug testing methods that indicate actual impairment due to cannabis.
This case has significant implications for employee drug testing policies in South Africa. Here are the key issues:
Enhanced fairness and justification: The ruling underscores the need for employers to ensure that their drug testing policies are fair and justified. Employers must have a valid reason for implementing drug tests and their policies must be applied consistently and transparently.
Procedural fairness: The case highlightes the necessity of adhering to fair procedures when conducting drug tests. This includes informing employees about the drug testing policy, obtaining their consent and ensuring that the testing process respects their privacy and dignity.
Employee rights and protections: The judgment reinforces the protection of employees’ rights in the context of drug testing. Employers must balance the need for a safe and productive work environment with the employees’ right to privacy and fair treatment.
Clear policies and communication: After the judgment, it has become crucial for employers to clearly communicate their drug testing policies to employees. Policies should be well-documented, outlining the rationale for testing, procedures to be followed and the consequences of testing positive.
Procedural safeguards: The ruling emphasises the importance of having procedural safeguards in place to prevent arbitrary or discriminatory testing. Employers must ensure that drug testing is conducted in a manner that is reasonable and non-discriminatory.
Overall, the judgment reinforces the principle that drug testing policies must be implemented in a fair, transparent and legally compliant manner, protecting both the integrity of the workplace and the rights of employees.
Employers should revise and implement their policies with careful attention to legal and procedural fairness. Here are key steps they should take:
Review and update the policy
Legal compliance: Ensure the policy complies with current legal standards and guidelines. Seek legal advice, if needed, to align with the court’s principles and relevant legislation.
Clear objectives: Define the purpose of drug testing clearly, whether for safety, performance, or legal compliance. Ensure it is reasonable and justified.
Draft a comprehensive policy
Scope and application: Specify who the policy applies to, including any exceptions. Clearly outline the circumstances under which testing will occur (for example, pre-employment, random or for cause).
Procedures: Detail the process for conducting tests, including how and when tests will be administered and how results will be handled.
Consent and notification: Require employees’ consent for drug testing and ensure they are informed about the policy and its implications. Make sure consent is obtained before testing.
Implement fair procedures
Privacy and confidentiality: Protect employees’ privacy by ensuring that test results and related information are handled confidentially.
Disciplinary actions: Outline clear, fair procedures for dealing with positive test results, including any appeals or reviews.
Communicate the policy
Employee education: Educate employees about the drug testing policy, including its purpose, procedures and their rights. This could be through training sessions or written communication.
Documentation: Provide employees with written copies of the policy and ensure they acknowledge receipt and understanding.
Ensure procedural fairness
Consistency: Apply the policy consistently across the organisation to avoid claims of discrimination or unfair treatment.
Reasonableness: Ensure that testing practices are reasonable and not overly intrusive. Implement safeguards to avoid false positives and ensure the accuracy of test results.
Monitor and review
Ongoing assessment: Regularly review and update the policy to ensure it remains compliant with legal standards and reflects best practices.
Feedback mechanism: Provide a mechanism for employees to raise concerns or provide feedback about the policy and its implementation.
By following these steps, employers can ensure that their drug testing policies are not only legally compliant but also fair and respectful of employees’ rights, aligning with the constitutional court’s emphasis on fairness and procedural correctness.
Simon Delaney is an expert on cannabis law, policy and compliance at Delaney Attorneys.