Employee ‘Intoxication’ or, for that matter, any impairment of the faculties is a huge OHS concern for employers and is often a factor in workplace incidents. At my workshops we often dwell on this aspect, particularly as the OHS Act has placed upon employers the duty of prohibiting persons to enter or remain at a workplace who appear to be under the influence of intoxicating liquor or drugs. Many of the concerns have a LRA slant and, not being my field of expertise, I respond by looking at the OHS Act in isolation. I believe that, if a person or employee appears, in your (employer) subjective opinion, to be intoxicated or under the influence of drugs, you have a duty and a right to prevent that person from entering or remaining at the workplace. Naturally it is better to have other persons confirm this subjective opinion or to rely on technology to gauge whether the person is indeed intoxicated but the latter is merely an additional tool which has been devised as an aid essentially in criminal trials involving drunken driving. (A lay person’s opinion in a drunken driving case is an exception to the expert evidence rule and is admissible in a court of law). If the person who is intoxicated is an employee, he or she has committed a crime in terms of the above regulation as well as section 14 of the OHS Act. For this to take effect it is vital that these provisions be communicated to all employees during routine training sessions, re-enforced with conspicuous signposting if possible. Record that employees have been trained into the provisions of section 14 and keep it on file. By training employees into their duties, employers EARN the right to enforce employee duties! These employee duties then become employer rights! It is vital that you impress upon employees that by working while intoxicated, on drugs or medication, they constitute a threat to themselves and others who may be affected by their acts or omissions and that they have a duty to inform employers to this effect, failing which they are not only in contravention of GSR 2A(3) but section 14 as well which carries a R50 000 penalty or 2 years in jail or both. In conclusion for an employee to discharge his or her duties in terms of section 14, it is implied that they will notify the employer if they are unable to perform their duties safety because of intoxication, medication of drugs. More