It may well be an employers’ worst nightmare: an intoxicated employee. From a health and safety perspective, the risks associated with impaired behaviour due to intoxication are near endless. And while it is universally understood to mean “under the influence of alcohol and illicit drugs” this may not always be the case.

Many common medications purchased legally from a shelf or across the counter at a local pharmacy can cause a state of intoxication that could be equivalent to the impairment caused by alcohol consumption. The effect on the central nervous system in terms of judgment, perception, mood, thinking processes and motor skills can be noticeable. Many cough medications contain high levels of alcohol and antihistamines are notorious for causing drowsiness.

These medications without fail come with a warning to not drive or operate heavy machinery before it is known how these medications will affect the patient. Unfortunately, for ailments we would consider “mild” such as a slight cough or a stuffy nose (at least pre-Corona) most would continue as normal without stopping. This would then lead to an employee attending the workplace in a state of “intoxication” that is normalised and accepted as a sometimes somewhat amusing but expected part of cold and flu season.

The Occupational Health and Safety Act 85 of 1993 (OHSA), in Section 2A of the General Safety Regulations deals with “Intoxication” and states that an employer or a user, as the case may be, shall not permit any person who is, or who appears to be, under the influence of an intoxicating liquor or drugs, to enter or remain at a workplace. It further states that no person at a workplace shall be under the influence or, or have in his or her possession, or partake of or offer any other person intoxicating liquor or drugs.

In the case where the drugs are legal medications, be it prescription or over the counter remedies, Section 2A also states that an employer or a user, as the case may be, shall only allow such a person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.

It must be kept in mind that the OHSA places the responsibility to keep the workplace safe and healthy for all who enter it, on both the employer and the employee. [Hyperlink: Occupational Health and Safety: What is it and why does it matter?] This means that it is a duty of the employee to report the use of any medication to the employer. The employer or supervisor, in turn, must then exercise their responsibility by deciding if it is safe for the employee to perform his or her normal duties while under the influence of such a medicine – while keeping the health and safety of the employee and all other workers in mind. Should it be obvious that the employee would be in a high-risk situation it is the responsibility of the employer to act in the best interest of everyone involved.

As an employer is prohibited, according to the OHSA, from allowing a person that is, or appears to be,  intoxicated into the workplace, it is important to involve the Human Resource Manager as measures that require an employee to not enter, or to leave, a place of employment will have a labour law aspect as well. It is crucial to instil awareness among employees of the risks associated with working while intoxicated, and that intoxication does not necessarily mean alcohol or illicit drug use, but any medication, prescription or otherwise, that may impair a person from performing to their normal standard and that this constitutes a threat to themselves or others who may be affected by acts or omissions due to their impaired state.