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When it comes to negligence, ignorance is no defence

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Legislation is drafted to address the problems faced in society at a particular time, writes Rhys Evans, director of ALCO-Safe.As time passes and the nature of the problem changes, so too must the legislation adapt to keep up with this change.

It is for this reason that guidelines and rules are amended by our legislature, so as to ensure relevancy and efficacy. While recent amendments to the Occupational Health and Safety Act (OSHA) have been made for this exact reason, we tend to forget to keep abreast of changes and new policies, and become complacent, letting the rules slip by the wayside.

However, given the changes that have been made to the OSHA, ignorance can no longer be used as an excuse. Those companies that assume that they will be given a slap on the wrist and a warning for failure to comply with the updated safety regulations are in for a shock. 2016 will not be kind to those pleading ignorance for their negligence when it comes to accidents or deaths caused by negligence related to drug or alcohol use in the workplace.

Substance use in the workplace is one of South Africa’s biggest issues that has gone unchecked largely due to an implicit culture of drinking and drug use in our society as a whole. Here, employers have generally taken a soft approach to occupational health and safety laws surrounding the problem of alcohol and drugs in the workplace and have, until now, been able to skirt the issue with minimal consequences.

All of that has changed with the recent revisions to the OSHA, and its laws and regulations will be implemented as necessity in all businesses across South Africa. These revisions have been made to address the soft approach companies have taken to substance abuse, and to prevent ignorance from being used as an excuse.

Liability for accident or injury due to negligence with regards to alcohol and drugs, have been placed squarely with the employer. It is no longer enough that the OSHA has placed responsibility on employers to ensure that they have an alcohol and drug-free workplace, by stating that an employer may not allow any intoxicated person – whether under the influence of drugs or alcohol – to enter or remain in a workplace.

The Act has taken a harder stance and now states that it is the employer’s responsibility to take reasonable steps to ensure this does not happen, which means that an employer can no longer claim ignorance of the problem as an excuse.

Is the OSHA being enforced and monitored in the working world? Yes, and we’re seeing an increasingly stringent implementation of the rules by health and safety inspectors, particularly in high-risk work environments. For example, we’ve recently dealt with a case where a mining company had bought the breathalyser equipment in the past and had them on premises, without actually using them.

When a safety audit was conducted, it was discovered that workers were not being tested for alcohol on arrival which is required in such a high-risk industry. Operations were shut down until the mine could prove that the testing equipment was being used on a daily basis, in line with regulatory requirements.

The implications for failure to comply with OSHA requirements are much stricter and heavier than before. Businesses can be shut down, until compliance is achieved and can incur massive fines, as well. The biggest problem will arise when a company is aware of an existing problem, but does nothing about it.

For instance, we had dealings with another mining company where the shift manager was aware of the workers smoking marijuana underground. He turned a blind eye because he’d heard that marijuana can increase productivity. The problem arose when one of the workers was killed in an underground accident, and upon investigation, when all of the workers tested positive for Tetrahydrocannabinol (THC), it came out that the shift manager did nothing to stop the use of drugs underground. He was essentially condoning the use of drugs, by ignoring it and he was dismissed and subject to a criminal hearing for manslaughter.

The company involved incurred massive penalty fines and was ordered to pay compensation to the families of the workers involved, because the accident was caused by negligence on their part.

Given that it’s legally enforceable that businesses are required to ensure that they take reasonable measures to remove or mitigate these risks, it is advisable to develop and implement substance abuse policies, procedures and programs for their workplaces.

These policies must cover how testing for drugs and alcohol will be done, and when it will take place. Employees need to be made aware of these policies and testing procedures and must be educated on the consequences of failure to comply with testing. It’s clear that ignorance of the law is no excuse, and companies should not expect leniency when it comes to the OSHA’s stringent requirements, especially in high-risk industries.