Since the Constitutional Court declared the private use of cannabis legal in the matter of Minister of Justice and Constitutional Development and Others v Prince & Others  ZACC 30, employers have been required to consider how best to deal with the effects of personal cannabis use in the workplace. The legitimate use of cannabis at home does not necessarily mean employees are entitled to attend the workplace under the influence or to render services with their ability impaired. The implications of the personal use of cannabis and its impact on the workplace were recently considered by the Commission for Conciliation, Mediation and Arbitration (CCMA) in the case of Mthembu & others v NCT Durban Wood Chips  4 BALR 369. In this case the employer, a company in the wood and chip industry, dismissed several employees for being under the influence of an intoxicating substance after testing positive for cannabis during working hours. In terms of the company’s substance abuse policy, the employer had a ‘zero-tolerance’ approach to the use of intoxicating substances by employees due to the dangerous nature of the industry in which it operated.
The employees challenged the fairness of their dismissals on the basis that they had consumed the cannabis at home in their private time and not during working hours. While noting that the Constitutional Court had recently declared the private use of cannabis legal, the Commissioner held that, akin to alcohol, an employer is entitled to discipline employees who use cannabis or are under its influence during working hours, where there is an inclination that the consumption of cannabis could impair the employee’s ability to work to the standard and care reasonably required by an employer.
The rationale behind the employer’s zero-tolerance approach to substance abuse was consistent with the high degree of danger posed at the workplace in which heavy machinery and dangerous equipment was continually being operated. In the circumstances, the Commissioner held that it would be reasonable for the employer to expect its employees not to be under the influence of cannabis when reporting for duty because of the inherently dangerous working environment. The employees’ dismissals were thus found to be fair. Not a one-size-fits-all ruling While the CCMA’s ruling may provide guidance to employers, the decision to dismiss the employees in the present matter was closely aligned to safety considerations associated with individuals working in a dangerous environment, under the influence of intoxicating substances. What about employees who perform desk jobs under the influence of cannabis? Would a zero-tolerance’ approach to these employees be reasonable in such circumstances? Would these employees pose a threat to the safety of other employees in the workplace?
The debate on how best to deal with the impact of personal cannabis use in the workplace is thus likely to continue. For the time being, employers should also be mindful of the following issues: • One of the difficulties that employers will face when employees use cannabis in their private time is that they will need to show that the employee’s ability to work was impaired or that the employee was under the influence of cannabis while at work.
As with alcohol abuse, an employer may discipline an employee who is under the influence of cannabis in circumstances where the employee is unable to perform their duties or poses a risk to other employees in the workplace. However, it is possible that an employee may test positive for cannabis even when not under the influence while at the workplace. So, for example, an employee who gets ‘high’ over the weekend may test positive for cannabis on Monday but this does not necessarily mean they are under the influence and unable to carry out their duties. Accordingly, a more nuanced approach may be required to deal with the use of cannabis than that of alcohol. • A further challenge for employers may be the methods of detecting cannabis.
There are a number of ways to test for cannabis, including urine and blood analysis. Unlike alcohol which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days. This may mean that a zero-tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in their private time. In addition, tests for cannabis do not demonstrate the degree of impairment of the employee’s ability to perform her or his duties.
• In developing any policy or workplace rules addressing the use of cannabis, employers will be required to take into account a wide range of factors. These include the nature of the business and operations, the employee’s duties and responsibilities, the manner of testing for cannabis in compliance with section 7 of the Employment Equity Act, 1998, and appropriate action depending on the extent of the impairment to the employee’s ability. Employers will thus be required to take steps to monitor employees’ behaviour to ascertain whether an employee is showing signs of being under the influence of cannabis on duty.
While the CCMA’s ruling gives guidance, it should not be used as a blanket justification for dismissing employees who test positive for cannabis. Employers should carefully consider how to regulate the use of cannabis in the workplace to best suit the nature of its business and operations and associated risks while respecting an employee’s constitutional right to use cannabis at home.
On the 18th September 2018 the South African Constitutional Court decriminalized the possession, consumption and private cultivation of cannabis for private use at home.
There has been widespread reaction throughout the industry regarding the potential impact this will have at the workplace specifically related to health and safety.
The information in blue below is courtesy of Sr. Nellie Nel of Indusmed.
Does the fact that one will have the right to private consumption of cannabis imply that employers will have to amend their policies and disciplinary codes?
To answer these questions, one must first consider the nature of cannabis and the effects thereof.
1 Cannabis is a psychotropic product from the plant Cannabis sativa and is potentially maladaptive. It has been used for thousands of years for inter alia medical, religious and social reasons.
2 The non-potent part of the plant, the stem, is used to manufacture paper, hemp rope, string, textiles and clothing. It is however much less harmful than for instance heroin or cocaine.
3 The effects of cannabis consumption vary due to numerous factors such as the method of administration, cannabis form, frequency and period of use.
4 Some effects can include euphoria, relaxation, relief from stress and pain, increased appetite, impaired motor skills, confusion, loss of concentration and decreased motivation.
5 Withdrawal symptoms may include headaches, anxiety, depression, and sleep disturbance.
6 The effects normally reach their peak within 30 minutes and can last up to 3 hours, but it may remain detectable in the bloodstream for days after consumption.
7 Cannabis can be detected between 3 to 5 days after occasional consumption, up to 15 days for heavy users and up to 30 days for chronic users.
Below is an extract from the General Safety Regulations of May 1986
2A.(1) Subject to the provisions of sub-regulation (3), 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 intoxicating liquor or drugs, to enter or remain at a workplace.
(2) Subject to the provisions of sub-regulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.
So, while smoking dagga in the privacy of your home is now legal, arriving at work still under the influence remains illegal as per section 2A of the GSR. The issue is, how do we test or determine if a person is under the influence of dagga.
The current testing methods determine the presence of dagga in the system but does not determine intoxication unlike alcohol testing which can determine the level of alcohol in the system. I would recommend that companies amend their drug and alcohol policies to fit in with the fact that it is now legal to smoke dagga at home.
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