Many employers may be concerned about the recent Constitutional Court judgment which declared that South Africans now have the right to cultivate, be in possession of, and use cannabis, in private, although the term “in private” has not yet been clearly defined. As an employer, you need not be overly concerned.

This Court’s decision does not necessarily mean that the employer immediately has to amend its policies, procedures, or its disciplinary codes. The ruling should also not be read in isolation, but needs to be considered in conjunction with other existing legislation, such as the Occupational Health & Safety Act. The effects of intoxication in the workplace, be it alcohol, or any other substance, still poses a health & safety risk. Where an employer has a company rule which prohibits the possession of or being under the influence of an intoxicating substance, the breach of such a rule would still be considered as misconduct and should be based on the General Safety Regulations.

There may well be room for some debate around the testing for cannabis use due to the specific characteristics of this substance and it is therefore important to differentiate between a subject testing positive for THC or tetrahydrocannabinol, (the chemical responsible for most of the psychological effects of cannabis) and “being under the influence” of cannabis. Most commonly used methods of testing (urine or saliva), only indicate that the subject had used cannabis prior to the test being administered and not whether the subject is actually “under the influence” at the time of administering the test.

  • Urine tests can not determine the exact day or hour that marijuana was last used. This is due to the fact that THC can stay in the user’s system even after he/she has stopped using cannabis and long after the intoxicating effects have faded. THC can linger in the subject’s system up to 10 days on average for a casual user and for 2 to 4 weeks if the subject uses cannabis often. Heavy users can test positive for THC for more than a month after the last use.
  • Saliva testing, which requires an oral swab taken from the subject, is regarded as slightly less invasive than urine testing and is perhaps more sensitive in that it would typically indicate whether the subject had used cannabis in the period 2 – 24 hours prior to the test being administered.

For these reasons, it is important for employers to supplement the use of urine or saliva tests with standardised and documented observation tests, which place on record the subject’s physical appearance, odour, reaction time, perception and spatial awareness at the time of the test. Historically, such observation test have proven invaluable in instances where disciplinary action was required against employees who were considered to be under the influence of alcohol, to supplement the results of the breathalyser tests and would therefore be likely to prove equally beneficial where suspected use of cannabis is concerned.

It is, therefore, reasonable to conclude that the Constitutional Court judgment will not offer protection to employees against disciplinary action should they act in contravention of existing company policies which prohibit employees from being in possession of or under the influence of intoxicating substances at work.

Article written by Dirk Scholtz