Substance Abuse in the Workplace: When It Is Misconduct and When It Is Incapacity

An employee tests positive on a urine screen. Another arrives smelling of alcohol for the third time this month. A third has been absent so often that a manager has started asking questions. In each case the employer faces the same decision, and it is not the decision most employers think they are making. The question is not what sanction to impose. The question is which process to open. Substance abuse in the workplace can be misconduct, it can be incapacity, and on the same facts it can move from one to the other as evidence emerges.

That classification decision is usually made in the first week, often by a line manager, and often without anyone recognising that a decision has been made at all. Get it wrong and everything downstream is compromised. The 2025 Code of Good Practice on Dismissal, which replaced the previous Schedule 8 with effect from 4 September 2025, does not change that principle. It sharpens the guidance an employer is expected to have applied when substance abuse in the workplace is the reason for a dismissal.

This article is written for employers, HR managers and industrial relations practitioners holding a live incident of substance abuse in the workplace. It is also written for employees who have been dismissed and are working out whether they have a case and where to take it. It assumes you already understand the difference between misconduct and incapacity, and applies that distinction to the hardest fact pattern in the field.

Substance Abuse in the Workplace: The One Decision That Shapes Everything

The distinction is this. Misconduct concerns culpable behaviour. Incapacity concerns the inability to meet the requirements of the job. Every question about substance abuse in the workplace returns to that division.

Where substance abuse in the workplace is misconduct, the employee could comply with the rule and chose not to. Reporting for duty intoxicated, drinking during working hours where that is prohibited, possessing or using a prohibited substance at work, or repeatedly breaching a known rule about alcohol or drugs all sit here. The focus falls on the conduct and on whether a known rule was breached.

Where substance abuse in the workplace is incapacity, the problem has developed into a dependency or related condition affecting the ability to perform the work. The focus shifts away from punishment and toward whether the employee can be assisted through counselling, rehabilitation or other appropriate measures, and whether the employee can ultimately do the job.

The facts that move substance abuse in the workplace toward incapacity include evidence of dependency or addiction, previous attempts at rehabilitation, medical or other professional evidence, and a pattern showing the conduct stems from an inability to control the substance use rather than a deliberate breach of a rule.

An employee who arrives intoxicated is therefore not automatically a misconduct case. The employer must consider whether the conduct is deliberate rule-breaking or a manifestation of dependency. Characterising substance abuse in the workplace correctly depends on the nature of the problem, the employee’s ability to control it, the rule involved, and the evidence actually available.

Employers underestimate a further complication. Classification is not a single decision taken once and then filed. It is a continuing assessment. An employer who correctly opened a misconduct process on the evidence available in week one may be obliged to reconsider in week three when a medical report arrives. Treating substance abuse in the workplace as a fixed category, decided at the outset and never revisited, produces most of the dismissals that are later overturned.

The two processes are also not mutually exclusive. Substance abuse in the workplace frequently presents as both at once: an employee with a genuine dependency who also, on a particular day, deliberately breached a clear safety rule. The dependency is relevant to sanction even where the misconduct is established. The correct approach is to deal with what the evidence supports and to record why.

What the 2025 Code of Good Practice Says About Addiction as Incapacity

Section 188 of the Labour Relations Act 66 of 1995 requires an employer to prove the reason for dismissal was a fair reason related to the employee’s conduct or capacity, or based on operational requirements, and that a fair procedure was followed. Section 188(2) requires anyone deciding fairness to take into account any relevant code of good practice issued under the Act. The 2025 Code of Good Practice on Dismissal, published as General Notice 3470 in Government Gazette 53294 and effective from 4 September 2025, is that code. Every dismissal for substance abuse in the workplace is now measured against it.

The relevant provision is item 21, headed “Incapacity: Ill health, injury and other forms of incapacity”. Item 21(4) provides that the degree and cause of incapacity is relevant to the fairness of a dismissal on this ground, and that in the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

Two points about that provision deserve care, because commentary has run ahead of the text.

First, the wording is materially the same as the provision it replaced. Be sceptical of any suggestion that the 2025 Code created a new principle about substance abuse in the workplace. It did not. South African labour law already recognised alcoholism as incapacity in appropriate cases. What changed is clarity, emphasis and numbering. If your policy still refers to item 10(3) of Schedule 8, it points at a repealed provision.

Second, what is genuinely new sits elsewhere in item 21. Item 21(6) records that incapacity may be unrelated to ill health or injury and may arise from other factors preventing performance of the job, including imprisonment. Item 21(7) records that incompatibility as a ground for dismissal, manifested by an inability to work in harmony with the employer’s business culture or with fellow employees, can constitute incapacity. Incapacity is broader than most employers assume, but the guidance on substance abuse in the workplace has moved the least.

Item 21(1) requires the employer to investigate the extent of the incapacity and, where absence is likely to be unreasonably long, to investigate all possible alternatives short of dismissal. Item 21(2) requires consideration of alternative employment or adaptation of duties or work circumstances. Item 21(3) requires that the employee be allowed to state a case in response, assisted by a trade union representative or fellow employee. Those three obligations frame the incapacity route wherever substance abuse in the workplace is the underlying problem.

The Code also supplies the misconduct framework. Item 8 lists the factors relevant to a fair sanction: whether the rule was valid and reasonable, whether the employee was aware of it, its importance in the workplace, the actual or potential harm caused, whether it has been applied consistently, and whether dismissal is appropriate. Item 9 records that dismissal is generally appropriate only where the continued employment relationship is intolerable, having regard to the nature and requirements of the job, the seriousness of the misconduct, whether progressive discipline might prevent a recurrence, any acknowledgement of wrongdoing, and the employee’s circumstances including length of service and disciplinary record. An employer treating substance abuse in the workplace as misconduct must work through that list, not merely assert that a rule was broken.

What has not changed matters equally. Addiction does not confer immunity from discipline. Where an employee knowingly breaches a clear rule, substance abuse in the workplace may still properly be dealt with as misconduct. The 2025 Code strengthens the obligation to identify and address possible addiction before defaulting to discipline. It does not abolish disciplinary action where the facts establish misconduct.

Misconduct or Incapacity: How to Tell the Difference on the Facts

Five fact patterns account for most substance abuse in the workplace matters that reach an attorney.

The positive test with no impairment. A positive alcohol or drug test does not by itself establish impairment or justify dismissal. Consider what the test actually proves, the reliability of the process, the policy, the role and the circumstances.

The long-service employee with dependency-driven absenteeism. Repeated absenteeism, poor attendance and declining performance may be symptoms of addiction rather than wilful misconduct. Where there is credible evidence of dependency, investigate incapacity and consider counselling, rehabilitation and reasonable alternatives before dismissal. Length of service and disciplinary record are relevant under item 9.

The safety-sensitive role. The threshold differs where an employee operates machinery, drives, works at heights or handles dangerous substances. Breaching a properly formulated rule carries more serious consequences because the employer has obligations under the Occupational Health and Safety Act 85 of 1993. Courts have accepted that a strict rule about substance abuse in the workplace may be justified in appropriate safety-sensitive environments.

The employee who discloses only after being charged. Late disclosure does not automatically convert misconduct into incapacity. Credible evidence of dependency must still be considered in deciding characterisation and process. Where no evidence of dependency existed until proceedings commenced, the employer is not necessarily required to abandon a legitimate misconduct process.

The prescribed medication result. An employee lawfully prescribed medication containing a controlled substance discloses nothing and returns a positive screen. The result is accurate and no rule has been broken. Handling that as substance abuse in the workplace misconduct, without first establishing whether the substance was lawfully prescribed and whether it affected fitness for duty, invites a discrimination claim alongside the unfair dismissal claim. Build a confidential disclosure route into the policy.

The label is not decisive. A dismissal for alcohol abuse classified as misconduct on day one, and never reassessed when dependency evidence emerged on day thirty, is vulnerable regardless of how correctly the hearing was chaired. Look past the incident and ask what the evidence establishes, whether there was impairment or merely a positive result, whether there is evidence of dependency, what the role requires, and what the policy says. Those answers determine whether substance abuse in the workplace is approached as misconduct, as incapacity, or as both.

If you are holding a positive test result and a suspended employee, the classification decision cannot wait for the hearing date. Contact our labour law team for advice on which process to open.

Drug Testing in the Workplace After Enever v Barloworld

In Enever v Barloworld Equipment South Africa, a Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC, reported at [2024] 6 BLLR 562 (LAC), delivered on 23 April 2024, the Labour Appeal Court set aside the Labour Court’s finding and held that the dismissal of an employee who tested positive for cannabis on a urine screen was automatically unfair and discriminatory. The court awarded compensation equivalent to 24 months’ remuneration. It is the most significant decision on substance abuse in the workplace in a decade.

The reasoning is the part employers keep missing. Cannabis remains detectable long after impairment has passed, so a positive urine result proves consumption rather than impairment. An employee who has used alcohol and is sent home can return and test negative the next day. An employee who has used cannabis cannot. Applied to an office-based category analyst working away from the heavy machinery the policy had been written for, that differentiation was an unjustifiably overbroad limitation of privacy and dignity, following the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening) 2018 (10) BCLR 1220 (CC).

Read the case carefully before acting on it. Enever was decided on its own facts, and the Labour Appeal Court was clear the finding may not hold where circumstances and work environment differ. It does not establish that a positive cannabis test can never support a dismissal, and it does not make testing unlawful. It does mean drug testing in the workplace must be fit for the purpose it is used for, and that a positive result is not proof of current impairment.

Practically, that affects six things:

• Breathalyser testing. For alcohol, a breathalyser can evidence current concentration and may be relevant to impairment. Interpret the result against the duties, the policy and the circumstances.
• Urine screening. A positive urine result, particularly for cannabis, establishes prior exposure rather than current impairment. It should not be equated with being under the influence.
• The impairment enquiry. Distinguish the presence of a substance from actual impairment. Observable signs, conduct, performance, the nature of the job and the safety risks are all relevant.
• Chain of custody. Where testing is disputed, show that the sample was properly identified, collected, handled, stored and tested. The evidential trail is what makes the result reliable.
• Consent. Ground testing in a lawful, reasonable and clearly communicated policy. Do not assume a general employment contract confers unlimited authority to test intrusively.
• Confirmatory testing. A non-negative screening result should be followed by an appropriate confirmatory test before any disciplinary conclusion is drawn, particularly where the consequences are serious.

An employee testing positive for cannabis after weekend use, in a role with no safety-sensitive element, is a materially different case from an employee testing positive while operating a forklift. The policy treating those two identically is the policy most likely to fail. Test results and medical reports generated in a substance abuse in the workplace investigation are personal information and must be handled confidentially and lawfully. The Information Regulator publishes guidance under the Protection of Personal Information Act 4 of 2013.

Two evidential points decide arbitrations. First, whoever administered the test should be able to explain the device, its calibration and the procedure followed. A result from an uncalibrated device, or an operator who cannot describe the method, is easily challenged. Second, contemporaneous observation. Where impairment is alleged, a written record made at the time describing what was actually seen carries far more weight than a recollection reconstructed months later. Employers lose substance abuse in the workplace arbitrations on evidence far more often than on law.

Running an Incapacity Enquiry Where There Is Dependency

Where the incapacity route is appropriate, the process is an investigation and a problem-solving exercise. It is not a disciplinary prosecution with different labels, and treating substance abuse in the workplace as though it were will not survive scrutiny.

Establish dependency rather than assuming it. Relevant evidence includes attendance and performance history, observed behaviour, previous interventions, treatment or rehabilitation records where appropriately disclosed, and credible medical evidence. A medical assessment can establish whether there is an underlying condition and how it affects the ability to work. An occupational health practitioner can assess fitness for work, functional limitations and workplace risks, which matters most in safety-sensitive roles. Focus on information relevant to fitness and work capacity rather than demanding unnecessary medical detail.

Voluntary disclosure of addiction is important evidence and should trigger a proper enquiry. An employer need not accept an unsupported assertion as proof of dependency. Subject to applicable law, the policy and the circumstances, an employer may require a reasonable and properly motivated medical or occupational assessment where fitness or safety is in issue.

The enquiry into substance abuse in the workplace runs as follows:

1. Identify and investigate the problem. Establish whether there is an actual dependency or other incapacity, and how it affects the ability to work.
2. Obtain appropriate evidence, including medical or occupational health input where necessary, subject to privacy requirements.
3. Engage with the employee. Give a proper opportunity to explain and respond, with the assistance of a representative.
4. Consider assistance and rehabilitation, particularly where addiction is established.
5. Consider accommodation and alternatives. Assess whether duties, working arrangements or the workplace can reasonably be adapted, or whether suitable alternative work exists.
6. Assess the prospects of a return to satisfactory work, including the likely duration and extent of the incapacity.
7. Only then consider dismissal, where the employee remains unable to perform and reasonable alternatives have been exhausted.

The substantive difference from a disciplinary hearing is the question asked. A disciplinary hearing asks whether the employee committed misconduct and what sanction fits. An incapacity enquiry into substance abuse in the workplace asks whether the employee can perform the work, what is causing the inability, what assistance or accommodation is possible, and whether reasonable alternatives to dismissal exist. Where dependency is medically diagnosed, accommodation obligations under the Employment Equity Act may be engaged, and managing employee health concerns in the workplace becomes part of the same exercise.

Record the enquiry as you go. The employer carries the onus under section 188, and an enquiry conducted in conversations and corridor decisions leaves nothing to discharge it with. Minutes, the medical or occupational health input relied on, the alternatives considered and why each was rejected, and the employee’s representations should be on file before any decision. In substance abuse in the workplace matters the file is frequently the difference between a defensible dismissal and an indefensible one.

How Far the Duty to Consider Rehabilitation Actually Goes

Item 21(4) requires that counselling and rehabilitation be considered. It does not require indefinite rehabilitation, and it does not require the employer to disregard operational and safety requirements.

On funding, South African authority has held that rehabilitation need not ordinarily be undertaken at the employer’s expense, unless provision is made through the employee’s medical aid or another applicable arrangement. Rehabilitation is a factor that must be genuinely considered. It is not a guarantee of treatment at the employer’s cost, and no employer facing substance abuse in the workplace should be told otherwise.

Unpaid leave may form a reasonable part of a rehabilitation plan. Consider the programme, its expected duration, the medical advice, the operational impact and whether further support or a return-to-work plan is appropriate.

Relapse does not automatically justify dismissal, and it does not give the employee unlimited protection either. Consider whether the relapse forms part of the underlying incapacity, whether rehabilitation has been attempted, the prospects of recovery, workplace safety, and whether reasonable alternatives remain. Relapse is a recognised feature of dependency. An employer treating the first relapse as conclusive proof that substance abuse in the workplace cannot be accommodated has usually not applied its mind to item 21 at all.

Last-chance and return-to-work agreements are useful where clear, reasonable and properly agreed, setting out treatment, fitness-for-duty requirements and the consequences of non-compliance. An agreement cannot contract out of the Labour Relations Act or make an otherwise unfair dismissal fair. Enforceability depends on the terms and the circumstances of conclusion. Where the relationship has genuinely broken down and both parties want a controlled exit, a mutual separation agreement is sometimes the better outcome, and it is an option most employers do not realise is available in a dependency matter.

Training the People Who Actually Make the Decision

The classification decision in a substance abuse in the workplace matter is almost never taken by an attorney, an executive or an HR director. It is taken by a supervisor at six in the morning with an employee in front of him who smells of alcohol and a shift that has to start.

That supervisor needs three things. He needs to know what to record, meaning what he actually observed rather than his conclusion about it. He needs to know what to do immediately, ordinarily to remove the employee from the safety-sensitive task, arrange safe transport home, and follow the testing protocol. He needs to know who to escalate to before any charge is formulated, so that classification is decided by someone who understands a decision is being taken.

What he should not do is decide the category. The most common origin of an unfair dismissal finding in substance abuse in the workplace matters is a well-intentioned line manager issuing a warning in the first hour, setting the matter on the misconduct route before anyone asked whether dependency was present. A short escalation rule in the policy costs almost nothing and prevents most of the damage.

Train managers on confidentiality at the same time. A suspected or disclosed dependency, and any test result, is personal information. Discussing it with colleagues who have no need to know is a separate legal problem layered on the dismissal dispute, and it makes a dismissal for substance abuse in the workplace considerably harder to defend.

When a Zero-Tolerance Drug Policy Can Still Be Defended

A strict policy is more defensible where there is a clear and rational connection between sobriety and workplace safety, particularly in roles involving heavy machinery, vehicles, firearms, dangerous equipment or hazardous processes. Enever recognised the outcome could differ in those circumstances, and section 187(2)(a) of the Labour Relations Act provides that a dismissal may be fair if the reason is based on an inherent requirement of the particular job.

It is not enough to say the workplace generally is dangerous. Identify the actual duties and explain why being unimpaired, or where justified abstaining from a particular substance, is genuinely necessary to perform them safely. That is what an inherent requirement means in practice, and it is an evidential burden rather than a drafting exercise.

Most policies handed to us need the same five changes. Remove any wording that a positive test equals misconduct or automatic dismissal. Distinguish use, possession, intoxication and impairment, which are four different things. Identify which roles are genuinely safety-sensitive and treat them separately. Prescribe a scientifically defensible testing methodology and a confirmatory process. Provide for a reasonable investigation where dependency is suspected, and make consequences proportionate to the risk. A policy on substance abuse in the workplace that survives none of those tests will not survive an arbitration either.

Consistency deserves its own paragraph. Item 10 of the Code records that an employer should generally apply the sanction of dismissal in the same way it has been applied in the past, and consistently between employees who participate in the same misconduct. Employers frequently discover part way through an arbitration that a previous instance of substance abuse in the workplace was met with a warning while the present employee was dismissed on materially similar facts. Inconsistency is not automatically fatal, but it must be explained by more than a change of management.

A zero-tolerance drug policy should be built around the risk the substance creates at work. It should not attempt to control what employees lawfully do in their private lives. That is the distinction on which Enever turned, and it determines whether your approach to substance abuse in the workplace will survive scrutiny.

Almost every substance-abuse and testing policy in circulation was drafted before September 2025 and before the Labour Appeal Court’s decision. Speak to our labour law team about a policy review against the 2025 Code.

Where the Dispute Ends Up: CCMA or Labour Court

Forum selection is where a good case is frequently lost, and the consequences fall on both sides.

Where the employer dismisses for misconduct or incapacity, for example for testing positive, reporting impaired, or being unable to perform because of addiction, the dispute is ordinarily referred under section 191 of the Labour Relations Act to the CCMA or the relevant bargaining council. Section 191(1)(b)(i) requires referral within 30 days of the date of dismissal or, if later, within 30 days of the employer making a final decision to dismiss or to uphold the dismissal.

Where the true reason falls within section 187, the matter belongs in the Labour Court. Section 191(5)(b)(i) provides for referral there where the employee alleges the reason for dismissal is automatically unfair. Section 187(1)(f) covers a dismissal where the employer unfairly discriminated, directly or indirectly, on any arbitrary ground, including disability. The key question is causation. What was the real reason for the dismissal?

A discrimination claim under the Employment Equity Act has its own jurisdictional requirements. An employee cannot label an ordinary unfair dismissal dispute as discrimination to bypass the CCMA. Dismissal disputes must be dealt with under the dismissal-dispute framework of the Labour Relations Act.

The practical consequence of the wrong forum is serious. The CCMA cannot determine an automatically unfair dismissal, and the Labour Court cannot take over a dispute Parliament allocated to the CCMA. A matter may be dismissed or referred back for want of jurisdiction, with delay, cost and potential time-limit problems.

The stakes differ too. Section 194(1) caps compensation for an ordinary unfair dismissal at the equivalent of 12 months’ remuneration. Section 194(3) caps compensation for an automatically unfair dismissal at the equivalent of 24 months’ remuneration. Both must be just and equitable in all the circumstances, and neither is an entitlement.

For substance abuse in the workplace specifically, dependency does not by itself make a dismissal automatically unfair. The employee must establish the dismissal was caused by a prohibited ground or another basis recognised in section 187. Where the real dispute is whether the employer fairly dismissed for misconduct or incapacity, it is ordinarily an unfair dismissal dispute for the CCMA.

What to Do Now

Consider a real pattern. An employee with fifteen years of service begins arriving late and accumulating unexplained absences. In the first week his manager treats it as ordinary misconduct and issues a warning. Shortly afterwards the employee discloses an alcohol dependency and agrees to attend counselling. Instead of reassessing the classification, the employer continues disciplinary action for the subsequent absences and dismisses him.

The critical mistake was made in the first week. The employer treated the conduct as wilful absenteeism without asking whether it was a manifestation of underlying incapacity. Once credible evidence of dependency emerged, the framework needed reconsideration and rehabilitation and other alternatives needed investigation. Where absenteeism is caused by alcoholism, the question of employee fault changes, and the matter differs materially from ordinary unauthorised absenteeism. That does not mean every alcohol-related absence amounts to incapacity. An employee who is not dependent, or who deliberately breaches a rule, may still face disciplinary action. Classification of substance abuse in the workplace must follow the evidence, not the mere fact that alcohol or drugs feature in the incident.

If you are an employer, preserve the following from the first incident: the incident report, witness statements and contemporaneous evidence; the applicable alcohol and drug policy, the disciplinary code and proof the employee was aware of both; all testing records including consent, results, methodology, calibration and quality records, chain of custody and confirmatory results; attendance, absenteeism, performance and disciplinary history; the employee’s own explanations and disclosures about possible dependency; medical and occupational health reports, handled confidentially; records of counselling, rehabilitation, referrals, warnings, accommodation and return-to-work arrangements; minutes of the enquiry including representations; and the reasons for the final decision and sanction. Item 13 of the Code requires employers to keep records of disciplinary transgressions, the action taken and the reasons for it.

If you have been dismissed, take the following to an attorney: the dismissal letter and any charge sheet or notices; the employer’s alcohol and drug policy and disciplinary code; all test results and documents showing how testing was conducted; disciplinary or incapacity notices, minutes and outcomes; medical, rehabilitation or occupational health evidence; emails and messages concerning the incident, your disclosure or rehabilitation; evidence of length of service, previous record and performance; any warnings, last-chance or return-to-work agreements; and your own chronology with the names of witnesses. The 30-day referral period runs from the date of dismissal, so do not wait.

The most expensive mistake on either side is getting the legal characterisation of substance abuse in the workplace wrong. An employer treating genuine incapacity as misconduct, and an employee assuming genuine incapacity excuses culpable misconduct, both end up in the same place. General guidance on employment rights and employer obligations is published by the Department of Employment and Labour, and reported judgments are available on SAFLII.

Frequently Asked Questions

Is substance abuse in the workplace always a disciplinary matter?

No. Substance abuse in the workplace may be misconduct where the employee breached a known rule and could have complied, and it may be incapacity where a dependency affects the ability to perform the job. Item 21(4) of the 2025 Code recognises alcoholism and drug abuse as kinds of incapacity where counselling and rehabilitation may be appropriate steps to consider. The correct classification depends on the evidence, and the same incident can fall on either side of the line.

Can I dismiss an employee for testing positive for cannabis in South Africa?

Not automatically, and not on the strength of the test alone. In Enever v Barloworld the Labour Appeal Court held that a positive urine screen for cannabis proves consumption rather than impairment, and set aside a dismissal on that basis. The decision turned on its own facts, including an office-based role with no safety-sensitive element and a policy the court found overbroad for that role. An employee testing positive for cannabis in a genuinely safety-sensitive position presents a different case. The enquiry remains fact-specific.

Is an employee who arrives at work drunk automatically guilty of misconduct?

No. A dismissal for alcohol abuse cannot rest on the incident alone. The employer must consider whether the conduct was deliberate rule-breaking or a manifestation of an underlying dependency. Where there is credible evidence of dependency, an incapacity enquiry may be the correct process. Where the employee could comply and chose not to, misconduct may be the correct route.

Do I have to send an employee to rehabilitation before dismissing for addiction?

You must genuinely consider counselling and rehabilitation where addiction is established or credibly raised. That is not an obligation to fund treatment. South African authority has held that rehabilitation need not ordinarily be undertaken at the employer’s expense unless provision is made through a medical aid or another applicable arrangement. Consideration must be real and recorded, not a formality.

Does a zero-tolerance policy protect the employer?

Not by itself. A zero-tolerance drug policy does not remove the requirement of substantive fairness, and it does not prevent a commissioner or a court from assessing proportionality. Zero tolerance may be defensible in genuine safety-sensitive environments where the employer can show a rational connection between the rule and the employee’s actual duties. Following your own written policy is not a defence if the policy itself is overbroad.

Can an employer force an employee to take a drug or alcohol test?

Drug testing in the workplace is not banned, but it is not unlimited. Testing engages privacy and dignity, and it should be grounded in a lawful, reasonable and clearly communicated policy. Subject to that policy and the circumstances, an employer may require a reasonable and properly motivated assessment where fitness for work or safety is in issue. Do not assume a general employment contract authorises intrusive testing at will.

If an employee discloses an addiction after being charged, must the disciplinary process stop?

No. Late disclosure does not automatically convert substance abuse in the workplace from misconduct into incapacity or invalidate an existing process. It must be genuinely considered in deciding how the matter should be characterised. Where there was no evidence of dependency until proceedings began, the employer is not necessarily required to abandon a legitimate misconduct process.

Does an employee have to disclose prescribed medication?

A well-drafted policy should require disclosure where prescribed medication may affect fitness for duty, particularly in safety-sensitive roles, and should provide a confidential route for it. Treating a positive result caused by lawfully prescribed medication as substance abuse in the workplace misconduct, without establishing the position first, carries real risk. Handle any medical information disclosed confidentially.

What records should an employer keep in a substance abuse in the workplace matter?

Item 13 of the 2025 Code requires employers to keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken and the reasons for those actions. In practice, also retain the policy, proof of the employee’s awareness of it, the full testing record including calibration and chain of custody, contemporaneous observations, medical or occupational health input, the alternatives considered, and the minutes and reasons for the decision.

How long do I have to challenge a dismissal?

Section 191(1)(b)(i) of the Labour Relations Act requires a dismissal dispute to be referred within 30 days of the date of dismissal or, if later, within 30 days of the employer making a final decision to dismiss or to uphold the dismissal. Late referrals require condonation on good cause shown, which is not granted as a matter of course.

Speak to Us Before the Classification Decision Is Made

The decision about which process to open is usually made within the first 48 hours, frequently by someone who does not know a decision is being made. It is the cheapest decision to get right and the most expensive to get wrong.

Employers: we advise on the correct process for a live incident, on running an incapacity enquiry, on testing methodology and evidence, on last-chance and mutual separation agreements, and on reviewing your policy on substance abuse in the workplace against the 2025 Code.

Employees: we advise on whether a dismissal for substance abuse in the workplace was fair, on which forum the dispute belongs in, and on the referral timelines that apply.

Contact Vermeulen Attorneys to arrange a consultation with our labour law team.

This article provides general information on South African labour law and is not legal advice. Outcomes depend on the specific facts, the available evidence and the discretion of the CCMA or the court. Please obtain advice on your own circumstances.