The court recently declared parts of the Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act inconsistent with the constitution, to the extent that they encroach upon the private use and consumption of cannabis for personal purposes. Should parliament amend the relevant legislation, employers may have to reconsider how they deal with the effects of personal cannabis use in the workplace.
- Dealing with the effects
Most employers have a zero- tolerance policy in the workplace regarding alcohol and drug abuse. Depending on the industry and the nature of the employees’ duties, the employers approach to alcohol abuse and the sanction imposed may vary. It is easy to test for alcohol such as the use of breathalysers which allows employers to view the probable physical and mental impairment of the employee based on the blood alcohol concentration.
While there are also many ways to test for cannabis, traces can be detected for up to 10 days to 6 months after use, unlike alcohol which may leave the bloodstream hours after consumption.
Unlike alcohol, the effects of cannabis on an employees’ ability to perform his or her duties are less well known and the tests for cannabis cannot accurately determine the degree of impairment of the employee to do his or her job.
While an employer may prohibit the use of cannabis while at work, it will be difficult to police the legal use of a drug that may or may not have an effect in the workplace.
- A Possible Solution
As with alcohol, an employer may take disciplinary action against an employee without a test having been done where the effects of cannabis are clearly observable and it is reasonably clear that the employee is too impaired to do their job or are a risk to other employees in the workplace.
An employer wishing to institute random testing for cannabis must ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.
Employers must be careful to distinguish between misconduct and incapacity when it comes to the use of cannabis. Where an employee can show an addiction to cannabis, the employer will have to consider whether counseling or rehabilitation may be the appropriate steps in terms of the Code of Good Practice.
- In Conclusion
The fact that cannabis may be used by an employee at home does not mean that the employee is entitled to come to work under the influence or with his or her ability to work being impaired.
The employee is still required to adhere to the employer’s workplace rules and policies. It is, therefore, recommended that employers revise their workplace policies in this regard.
ABOUT THE AUTHOR
Stacy Lee Oberem has been with SEESA Labour since October 2015 and has joined the BEE Department in July 2017. She obtained her LLB degree in 2015 from Nelson Mandela Metropolitan University.