On the 18th of September 2018, The Constitutional Court decriminalised the use of cannabis in private surroundings and with the cabinet that has given the go-ahead to the official proposals made by the Cannabis for Private Purposes Bill of 2020. The legislation will now be passed through Parliament before receiving its final approval.
Safety concerns are usually a company’s main reason for prohibiting cannabis in the workplace as usage has been linked to an increase in job accidents and injuries. The fact that the use of cannabis in private surroundings has been decriminalised does not change employers’ policies and procedures that are currently in place.
Being under the influence of mind-altering substances at work renders the employee unfit for duty and can be a safety hazard, especially for employees operating heavy machinery, driving vehicles or performing high-risk duties, like medical procedures.
Testing for cannabis can be done through urine and blood analysis. Cannabis is usually detectable in bodily fluids for 1 to 30 days after the last use. As with other drugs, it may be detectable in hair for several months. Depending on the doses and the frequency of cannabis use, it may be detectable several months after the last use.
The effects of cannabis on an employee’s ability to perform his or her duties are less well-known, and the tests are likely to be more complicated than alcohol tests. Currently, the tests for cannabis cannot determine the degree of impairment of the employee.
Though most companies have policies dealing with alcohol and drug abuse, the sanction imposed may vary as it depends on:
- The industry type;
- The nature of the employees’ duties;
- The disciplinary code;
- The conditions in which the offence was committed;
- The noticeable extent of the employee’s impairment to perform their duties;
- The employee’s history of cannabis or other drug-related offences at work; as well as
- The precedent set by the employer for the same type of offence committed previously.
Most employers have adopted a zero-tolerance approach to the use of drugs and alcohol as it impairs the employee’s ability to perform their duties.
A zero-tolerance policy does not mean dismissal for a first offence, it only means that 0.00% of alcohol or drugs percentage are tolerated by the company. Progressive discipline will still have to be implemented by the employers’ disciplinary code.
Employers will have to enquire from their clients what the requirements are for employees to enter certain work areas. Many companies require that the employee may not test positive for the use of cannabis. Therefore, the employee is not under the influence of cannabis, but if he/she tested positive for cannabis, he/she will not be able to access the working premises and therefore be redundant for the employer. If the employee was aware of the requirement of testing negative for cannabis and still went about to use cannabis at home, privately, he has/she breached a company policy.
Any policy intended to explicitly address the use of cannabis and its effects in the workplace needs to consider Section 7 of the Employment Equity Act, No 55 of 1998, which states that medical testing is prohibited unless legislation permits or requires it or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.
The Occupational Health and Safety Act 85 of 1993 2A stipulates the following:
- Subject to the provisions of sub-regulation (3), an employer or a user, shall not permit any person who is or who appears to be under the influence of intoxicating substances to enter or remain at a workplace;
- Subject to the provisions of sub-regulation (3), no person at a workplace shall be under the influence of or have his or her possession or partake of or offer any other person intoxicating liquor or drugs;
- An employer or a user shall in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medication do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.
We recommend that the contract of employment clearly states that the employee agrees to submit him/herself to any examination, medical or otherwise or examination using apparatus specially designed for testing, in the event of any suspicion by the employer or supervisor of such employee being under the influence of liquor or a substance, which has a narcotic effect or against company policy and procedure.
Special thought has to be given to the manner of conducting tests, whether the employee has agreed to the testing (testing must be voluntary) as well as confidentiality. Testing in itself must not be used to victimise or unfairly discriminate against an employee. That is why employment contracts and policies must be up to date and proper employee inductions are extremely important.
Schedule 7 and 8 of the Labour Relations Act’s Code of Good Practice regarding dismissals must be taken into consideration to determine if the employee is guilty of an offence and it the misconduct is dismissible or not.
Need assistance with employment contracts? Contact your nearest SEESA office, alternatively, leave your contact details on our website at www.seesa.co.za
About the author:
Zan-Mari Kok completed her Honours degree in BCom Labour Relations Management in 2017 at the North West University. She started her career at SEESA in May 2020 and is currently a Labour Legal Advisor as well as Consumer Protection & POPI Legal Advisor at SEESA’s Polokwane branch.
Resources:
- National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30
- Employment Equity Act, No. 55 Of 1998
- The Occupational Health and Safety Act 85 of 1993
- Labour
Relations Act Code of Good Practice Schedule 7 & 8
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