It has been more than a year since the Constitutional Court decriminalised the use of cannabis by an adult person in his or her private dwelling.  The effect of the Court’s ruling is twofold:

  • It decriminalises the use or possession of cannabis by an adult in private, for that adult person’s personal consumption in private; and
  • it decriminalises the cultivation of cannabis by an adult in a private place, for that adult’s personal consumption in private.

The aforementioned landmark ruling did not deal specifically with cannabis decriminalisation in the workplace, however this does not affect an employer’s obligation to maintain a safe working environment for all of its employees.  This includes clear and concise policies relating to alcohol and drug abuse and measures to prohibit intoxicated employees from entering the workplace.

It is important to note that the ruling does not extend to the cultivation or possession of cannabis with the intention of selling it.  It will still be a criminal offence to grow cannabis commercially or deal in cannabis.

  1. IS THE WORKPLACE CONSIDERED A “PRIVATE SPACE”?

Although cannabis use, possession and cultivation are not confined to one’s home or a private dwelling, it is likely to be difficult for an employee to argue that the workplace is a “private space”, especially given that the use of cannabis in public or in the presence of non-consenting adult persons is not permitted.  The workplace can therefore not be defined as an employee’s private space and thus the use of cannabis in the workplace is still regarded as an offence.

  1. THE EMPLOYER’S CONUNDRUM
  • The active compound in cannabis – Tetrahydrocannabinol (“THC”) – can remain in a person’s system for weeks or even months for heavy users of cannabis. This means that an employee who legally used cannabis on a Friday evening is likely to show traces of the drug if tested at work on a Monday.
  • However, by Monday this employee will no longer be under the influence and is unlikely to be impaired. In other words, even if a person is no longer “high”‚ he or she can still test positive for the substance.
  • In the above scenario lies the conundrum that employers experience with the use of cannabis amongst their employees and the testing thereof.
  1. MEDICAL TESTING: SECTION 7 OF THE EMPLOYMENT EQUITY ACT (“EEA”)

The testing of employees is still governed by Section 7 of the EEA and is permitted if it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

  1. IS THERE A DIFFERENCE BETWEEN TESTING POSITIVE FOR CANNABIS IN ONE’S SYSTEM AND BEING UNDER THE INFLUENCE?
  • There is indeed a difference between the two. Given the extensive timespan during which THC can be detected, the mere presence of cannabis in an employee’s system will not be sufficient to prove that a person is under the influence of an intoxicating substance.  The employer must be able to determine whether the substance is affecting the employee’s ability to function and perform normally.  An individual under the influence would have difficulty concentrating and taking instructions from superiors, will not be able to multi-task, may become unduly aggressive if challenged for performing work slowly, may have difficulty operating machinery, etc.
  • There is a substantial difference between testing for alcohol and cannabis, in that as long as alcohol is detected, it results in impairment. Cannabis however may not necessarily result in impairment if detected many days after consumption.  Employers need to be aware of this distinction.
  1. WHICH TESTS ARE CONSIDERED TO BE MORE EFFECTIVE IN DETERMINING IF AN EMPLOYEE IS UNDER THE INFLUENCE OF CANNABIS?
  • Drug tests that require an employee to submit a urine sample will show whether the person consumed cannabis, but it does not necessarily tell the employer when it was consumed. For work purposes, the urine test is no longer recommended.
  • ALCO-Safe, a company well known for supplying drug and alcohol tests throughout South Africa, advises that saliva tests are the more effective option since these tests have a significantly shorter detection window. A saliva test can show a positive result for THC for approximately 6 hours after consumption and is thus considered the more appropriate and accurate test in order to determine if an employee is under the influence.
  1. WORKPLACE POLICIES
  • General Safety Regulation 2A of the Occupational Health and Safety Act requires that employers prohibit an employee’s access to the workplace if such employee appears to be under the influence of an intoxicating substance.
  • In view of this, most employers tend to enforce a zero-tolerance policy for the use of drugs and alcohol. However, given that traces of cannabis can remain in the body for weeks or even months after use, employers should consider regulating cannabis consumption as a separate policy.  A zero-tolerance policy may not necessarily be considered “fair” if cannabis is detected weeks after intake and the employee is clearly no longer under the influence of the drug.
  1. FAIR LABOUR PRACTICES
  • To navigate the complexities brought about by the Constitutional Court ruling on cannabis, it is imperative that employers revisit and revise their workplace policies on drug and alcohol use, to maintain fair labour practices in the workplace.
  • An employer’s policy on cannabis should be tailored to include a clear differentiation between testing positive for cannabis and being under the influence. This will enable employers to enforce the obligation to maintain a safe working environment for all of their employees without infringing upon the employee’s rights to consume cannabis in private.

 

Ashmini Singh

BSoc Science, LLB, AdvDip in Labour Law

Director

Labour Law Department

Email:  ashmini@sstlaw.co.za

Phone: 012 361 9823