CANNABIS IN THE WORKPLACE

The Constitutional Court judgement in the matter Minister of Justice & Others v Prince & Others has decriminalised the cultivation, possession and use of dagga for private purposes, leaving many employers concerned with the lawfulness of a zero-tolerance workplace rule or policy which prohibits cannabis use.

The Occupational Health and Safety Act will still allow employers to implement a zero-tolerance policy to the use of any intoxicating substance. Cannabis will fall within the definition of an intoxicating substance for the purpose of the Act. Regulation 2A of the Occupational Health and Safety Act instructs employers not to allow any person who is or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. An employer may also insist that no employee be in possession on intoxicating substances, while on the employer’s premises or in the course and scope of an employee’s employment.

It will be vital for employers to establish clear workplace rules in respect to Cannabis use and possession. It will also be important for an employer to provide proper training to its supervisors and managers as to how to identify possible cannabis use in the workplace. The appropriateness of zero tolerance policy and dismissal as sanction may need to be measured against the nature of the workplace and in certain high-risk professions dismissal may be warranted for a first offense. In high risk environments an employer may wish to consider incorporating consent to regular drug testing as a condition of employment.

In order to take disciplinary action against an employee, who an employer suspects is under the influence of cannabis, the employer will be required to prove this on a balance of probability and this is where the challenge of enforcing a zero tolerance policy may lie. A general observation test to be given by a manager or supervisor may be helpful in determining use, as drug tests alone may not be sufficient to prove use while on duty.

The active compound in marijuana‚ tetrahydrocannabinol (THC) can remain in an employee’s system for up to two months, while the identifiable side effects of Cannabis will in most cases only be present for three hours. The consequence of the short time frame of side effects, coupled with the lengthy period THC remains in the system means that a positive test for THC, will not be sufficient to prove an employee is under the influence of an intoxicating substance for the purpose of disciplinary action and the employer will be required to prove on a balance of probabilities that the employee was under the influence, with the effect that his abilities for perform his job functions were impaired. An observation test may be sufficient to pursue disciplinary action where the effects of the substance are clearly observed.

As with any allegation of substance abuse, employers must distinguish between misconduct and incapacity. Where an employee uses addiction to cannabis as a defence, the employer will have to consider whether counselling and rehabilitation may be appropriate steps, in accordance with the Code of Good Practice.