Validation of the Mandatory Guidelines for the American Federal Workplace Drug Testing Programs within the context of the South African Constitution

Abstract

This study assessed the USA Mandatory Guidelines for the American Federal Workplace Drug and Alcohol-free Workplace, as a proposed framework for drug and alcohol testing in the South African workplace. The use of mind-altering substances like cocaine and opium has been part of humankind for millennia. Alcohol is an excellent example of a euphoric substance that is legal and socially acceptable. Sufficient evidence exists that the use of these substances by workers is a health and safety risk in the workplace due to their effects on the human brain. A drug and alcohol-free workplace program needs to be established subject to certain constraints. The main constraint is the fact that the privacy of an employee has to be respected, as required by the Constitution of South Africa, and this includes private drug use. Therefore, a balance should be struck between the privacy of an employee and the risk imposed on his own health and safety and that of others due to his drug use (licit and illicit). A workplace drug and alcohol-free program, which is ethically sound, legally correct and scientifically accurate will minimize the risk to all parties involved in the workplace if it is applied correctly and consistently. Testing of employees can be regarded as the apex of such a program since incorrect test results can harm not only an individual, but can also be detrimental to his own safety and that of others if he is allowed on site in a state of intoxication. There are no regulatory mandatory guidelines in South Africa as there are in the United States of America (US), but there is sufficient legislation that allows for the testing of employees within a drug and alcohol-free workplace program. An overview of the US legal framework and Department of Health and Human Services Mandatory Guidelines for the American Federal Drug and Alcohol-free Workplace Program (HHS Mandatory Guidelines) will be provided and compared for compliance against South African legislation. Suggestions will be made in accordance with international best practice in the case of non-compliance with the US guidelines within the South African context. Current practice in South Africa will be highlighted and evaluated against international best practice. The medico-legal questions raised in this study will be portrayed at an integrative level, with reference to a multi-layered approach, founded in the applicable supreme provisions of the Constitution of South Africa, the applicable principles of common law, relevant legislation (often articulated in terms of the Constitution), professional policy guidelines, interpretative case law, and considerations of medical ethics.