INTOXICATION

Can a company administer breathalysers in the workplace? What action, if any, can be taken against employees who report to work under the influence of alcohol?

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SOUTH AFRICA – THE HOST COUNTRY
ALGERIA
EGYPT
HONG KONG
INDIA
INDONESIA
ISRAEL
JAPAN
KENYA
KOREA
LIBYA
MAURITANIA
MAURITIUS
MOROCCO
NEW ZEALAND
NIGERIA
OMAN
SAUDI ARABIA
THAILAND
TUNISIA
UGANDA

SOUTH AFRICA – THE HOST COUNTRY

Our courts have held that an employee is “under the influence of alcohol” if he/she is unable to perform tasks entrusted to him/her with the same skill expected from a sober person. Evidence of intoxication may be derived through tests such as a breathalyser. Where an employer has concluded contracts of employment with employees, in terms of which employees consent to random drug and alcohol testing, and where such testing will not infringe an employee’s right to privacy, such testing may be administered. This is a tricky area of the law, and therefore it would be best to seek legal advice prior to administering such tests in the workplace. Intoxication whilst on duty is a form of misconduct, and an employee may be dismissed if he/she has consumed alcohol to the point where he/she is rendered unfit to perform the necessary duties of the job.

ALGERIA

It is prohibited by labour law to drink alcohol in the workplace. It is also a criminal offence. The consequence of being under the influence of alcohol in the workplace may be summary dismissal as this is regarded as a form of gross misconduct.

EGYPT

Public drunkenness is forbidden in Egypt. An employee who comes to the workplace in a state of obvious drunkenness or under the influence of drugs during working hours is considered to be guilty of gross misconduct and this may lead to disciplinary action being taken against the employee, including dismissal.

HONG KONG

Administering a breathalyser to employees is allowed only if the employees consent thereto. Depending on the terms of the employment contract, disciplinary action may be imposed on an employee who reports to work under the influence of alcohol. The company should lay down clear ground rules to this effect. Depending on the circumstances, the employee may be summarily dismissed for engaging in this type of misconduct.

INDIA

There is no legal prohibition on administering breathalysers in the workplace thus companies can do this as they deem necessary. Courts in India have held that reporting to work in a state of drunkenness constitutes misconduct which may warrant dismissal.

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INDONESIA

Yes, a company may administer breathalysers in the workplace. Intoxication in the workplace is a serious violation of law in Indonesia. Consuming or being under the influence of alcohol during working hours typically constitutes serious misconduct and may warrant immediate termination (subject to applicable laws and regulations). However, the situation depends on the company’s regulations or CLA.

ISRAEL

An employer cannot force an employee to take a breathalyser test. If an employee comes to work under the influence of alcohol, it may be considered a breach of the employee's duties and may result in disciplinary action being taken against the employee.

JAPAN

An employer is allowed to administer a breathalyser if it deems it necessary and the test is carefully administered. The employer may take disciplinary action against the employee, depending on the situation, in accordance with the rules of employment.

KENYA

The use of breathalysers is not regulated under Kenyan law; therefore it is not clear whether a company can use them in the workplace. However, if an employer suspects that an employee is intoxicated, administering a breathalyzer and getting a positive result would corroborate the employer’s suspicion, but doing so is not legally required. Section 44 of the Employment Act provides that incapacity to work during working hours due to intoxication is a justifiable ground for summary dismissal. Nevertheless, a company should follow progressive discipline when dealing with intoxication in the workplace, unless the disciplinary rules stipulate that intoxication will result in the summary termination of the employment relationship.

KOREA

Generally, a company can require an employee to take a breathalyzer test in the workplace if he/she consents or if the individual employment contract or the Rules of Employment provide for the use of breathalyzers. A company can require such testing of employees whose jobs involve a high risk of injury to people and property, for example, bus drivers and heavy equipment operators. Based on the Rules of Employment, a company can prohibit employees under the influence of alcohol from working, especially where their jobs carry a high risk of injury to people and property.

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LIBYA

Drinking alcohol is forbidden in Libya. Consequently, drinking in the workplace is also not allowed. Being found drunk in the workplace is a ground for dismissal that warrants immediate termination without compensation or notice.

MAURITANIA

Public drunkenness is forbidden in Mauritania. Coming to work in a state of drunkenness is considered a form of gross misconduct and may lead to disciplinary action being taken against the employee, including suspension of employment or dismissal.

MAURITIUS

Breathalysers may be used in the workplace to support evidence during an internal investigation that an employee is under the influence of alcohol while present on the office premises. Disciplinary action may be taken against employees who are under the influence of alcohol at the workplace, which may result in summary dismissal.

MOROCCO

Yes. A company can administer breathalyzers, but it is not culturally well perceived since it is strictly forbidden to drink alcohol in a Moroccan company. The consequence of reporting for duty under the influence of alcohol is dismissal, without any notice, as this will be regarded as gross misconduct.

NEW ZEALAND

A company can lawfully use breathalysers in the workplace only where it has an approved drug and alcohol policy and where the employer has reasonable cause to suspect the employee is under the influence of drugs or alcohol. Alternatively, breathalysers can be administered on a random basis without any warning if the policy provides for this and the employee works in a safety sensitive area. An employer can commence a disciplinary process for employees who report to work under the influence of alcohol. Therefore, the situation of an employee who compromises the safety of others by being intoxicated is treated very seriously. Employers can require employees to attend rehabilitation services or ban them from the premises until they are no longer intoxicated. On occasions, this could be grounds for dismissal.

NIGERIA

Generally, breathalysers are not used in Nigeria, but there is no regulation or law prohibiting employers from administering them in the workplace. Employers would be entitled to take any disciplinary action as may be provided in the contract of employment if an employee reports for duty under the influence of alcohol. Where an employee repeatedly reports to work under the influence of alcohol, the employer may choose to terminate his/her contract of employment without specifying any reason for doing so.

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OMAN

There is nothing in the Omani Labour Law that allows or prevents the use of breathalysers in the workplace. In practice, the use of a breathalyser may be difficult to implement. Nevertheless,
Article 40(7) of the Omani Labour Law permits an employer to dismiss an employee without notice and without payment of end of service benefits if he/she is found in a state of drunkenness at work.

SAUDI ARABIA

The Saudi Labour Law does not address whether an employer can compel potential job applicants and current employees from undergoing drug tests. However, applicants can be requested to undergo pre-employment and post-offer drug tests. Article 63 of the Saudi Labour Law may be construed as providing an employer the right to request current employees to perform a drug test when there is reasonable suspicion and/or evidence suggesting drug use.

THAILAND

Compulsory administration of a breathalyser is permissible only if it is provided for in the work regulations of the employer. If reporting to work under the influence of alcohol is expressly prohibited in the work rules or in any other announcement or instruction of the employer, such behaviour may constitute a ground for termination of employment without notice or compensation, provided that a written warning had been given to the employee previously and the offence was repeated by the employee within 12 months. An employee who reports to work under the influence of alcohol and who causes loss or damage to the employer as a consequence of his or her condition could be terminated without the requirement of a prior written warning.

TUNISIA

Yes. A company can use breathalyzers, as it is forbidden to consume alcohol in a workplace. The consequences are dismissal, without any prior notice as intoxication in the workplace is regarded as a form of gross misconduct. Please see Article 14 – 8 of the Labour Code.

UGANDA

Yes. The consequence of reporting for duty under the influence of alcohol is dismissal, including summary dismissal, as drinking alcohol in the workplace or coming to work intoxicated are both regarded as forms of gross misconduct.

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