In 2018 the Constitutional Court handed down a judgement that effectively legalized the private use of cannabis. Around the country, many people rejoiced at this new freedom to legally use a substance that most had been secretly consuming in private for years, even decades. All that time in fear of landing up in in jail, or being refused access to their children, or losing their jobs. To name but a few of the more obvious repercussions
And that consumption was not necessarily restricted to recreational use either. Vast numbers of people suffer from physical or psychological conditions where cannabis has been proven to effectively offer medical relief. Up until recently only a handful of cancer patients could legally obtain a prescription for medical marijuana.
With all of these variables to consider, the implications of the Cannabis Amendment Bill become profound. Especially for employers and the potential impacts on both safety and productivity within the workplace.
How it used to work
In the past, the use of cannabis was almost always prohibited under any condition.
If the police found dagga in your possession, you faced arrest and a criminal record. If your employer tested you and the results were positive, you faced disciplinary action. But this did not necessarily stop people from smoking it or consuming it in the form of edibles and/or oils. Again, for numerous reasons.
Recreational use almost certainly led to criminal records and a loss of income in terms of employability. But medicinal use was almost as likely to have the same outcome, since the medicinal value of marijuana was not legally recognised in many cases.
The 2018 Constitutional Court ruling
With the new ruling, in layman’s terms, the court allows individuals to grow and use cannabis in the privacy of their homes, provided that it is for personal consumption only.
There are, however, restrictions in terms of the amount of cannabis a person may have in their possession and the number of plants that may be grown.
For the employer it’s important to know that the possession of cannabis in any environment besides the home is limited to a maximum of 100 grams. Given that it is usually dried, it is considerably more than you would imagine – easily 2-3 bank bags (“bankies”) worth.
Levels of intoxication and their effect on mind and body
Cannabis has various effects on the biochemical processes in the brain and produces physiological responses in the body. These effects can vary greatly depending on whether the cannabis was smoked or consumed orally, the type of cannabis consumed, and the amounts consumed.
When smoked, typically the effects of cannabis take hold within minutes. Mental states can vary from euphoria to paranoia. Eyes may become red and the heart starts racing. Although not as intense as substances like LSD, some auditory and visual hallucinations may occur. These effects begin to taper off inside an hour or two, but can also vary greatly depending on the individual’s metabolism and body mass.
When consumed orally, typically the effects take longer to take hold, often more than an hour. Depending on the volume consumed, the effects, while similar, can be far more intense than smoking – and last for six to eight hours.
Employees that are ‘high’ are essentially unable to perform work-related duties productively and within established safety standards.
Testing in the workplace remains complicated
Alcohol intoxication is simple to determine, using breathalyser or blood alcohol test. But with cannabis, current tests detect THC metabolites, which can be present in the blood or urine for anywhere between 3 days to a month after use. The problem becomes that one cannot simply claim intoxication on the basis of such a test.
Testing in this fashion ultimately appears to judge the morality of employees, while failing to determine whether any given employee is actually intoxicated or incapacitated at the time of testing.
If an employee smokes the Friday evening after work in the privacy of his own home, he is not breaking the law. If on Monday he is subject to a random drug test, he will in all probability test positive but also not be intoxicated over 48 hours later. If he has given no indication that he is intoxicated to, in fact, justify such a test, it can be argued in court that the test infringed upon his constitutional right to privacy.
The issue of conflicting personal and workplace rights
The Constitutional Court has upheld the right to privacy and people are allowed to smoke marijuana subject to certain conditions. BUT employers also have both a legal obligation to ensure safety in the workplace and the right to services rendered in exchange for payment. Where the conflicts arise between these legal rights has yet to be thoroughly tested and a delineated by the courts, so it remains a grey area. One that is nevertheless quite obviously a problem.
What if a forklift operator causes an accident while high? Does the company not have an obligation to ensure the safety of his co-workers on the basis that he was intoxicated? But what if such symptoms were not clearly evident and no test could reliably establish the level of dagga intoxication at the time of the incident? What then?
What about those employees who over imbibe every evening to the extent they are sluggish but not technically intoxicated during work hours? How does one measure the extent to which work performance suffers? How can supervisors maintain the expected level of productivity on a day-to-day basis?
Any employee also has to give consent to be tested. Can an employment contract be structured to ensure such consent is either voided or agreed to in advance? Does this not infringe upon their personal rights?
And this is just the tip of the proverbial iceberg.
How are different organisations dealing with the issue?
Different companies have responded in different ways.
Some companies continue to insist on random testing for all staff, as safety is a critical requirement. Other companies have designated specific job roles to be subject to testing. But the outcome of a positive test result only really affords three options.
Firstly, the safest legal and ethical course of course of action is to send an employee home for the day on full pay. Legal action is highly unlikely, but the downside remains that is that the company pays for services never rendered. Furthermore, such a policy can be exploited by employees who leverage it into an ongoing state of paid suspension indefinitely.
Secondly, the most untested course of action is to send an employee home for the day on a no work, no pay basis. Legal action is far more likely, with the employee likely to approach the CCMA or Labour Court. The immediate downside is the disruption to operations with potential to escalate into costly legal action.
Thirdly, the disciplinary committee approach which suspends the employee for the day, with or without pay, but then initiates an investigation. Here again, there remains a high probability of employee retaliation and legal expenses.
Other companies are either not aware of the cannabis ruling, or are simply choosing to ignore it altogether.
How does this affect you as an employer?
This is most a growing dilemma, as cannabis consumption continues to increase. And it will likely take some time for various test cases to move through the legal system to establish a definitive set of rulings on the matter. For now these are the primary considerations you should keep to:
The Occupational Health and Safety Act
The act instructs every employer to provide and maintain a working environment that is safe and without risk to the health of employees by taking steps that may reasonably eliminate or mitigate any existing or potential hazard. This includes information, instruction, and training as required, and to enforce such measures as may be necessary. This would include intoxicated persons.
The Lines Between Misuse and Dependence
Every company has should have a substance misuse policy that determines whether an employee found to have tested positive is guilty of misconduct or in breach due to incapacity.
Misconduct, for example, would be categorised by poor decision making. An employee having a drink over lunch at a restaurant, that perhaps becomes two or three, and results in that person being visibly intoxicated upon return to work. A senior manager can conduct a breathalyser test and ask other witness to confirm the appearance of intoxication. This would become a matter for the disciplinary committee which would likely find in favour of misconduct and administer a penalty.
Incapacity, for example, would be categorised by addiction. An employee who has a joint one morning to reduce stress and anxiety can soon find themselves smoking every morning before work. This impacts his productivity and performance and he is called in for a review. He realises that his habit is impacting his performance and attempts to go sober, but fails, and one day gets singled out for being visibly intoxicated. A test is conducted, with a positive result. Again, this would become a matter for the disciplinary committee which would have to consider the admission by the employee that they have become dependent. This supports an argument for incapacity, where the most advisable outcome is to offer assistance to the employee in the form of a treatment programme.
Information, Education, and Training
Prevention is better than any cure. Substance misuse awareness and education programmes should be common practice in all organisations. How to identify substance misuse and what to do about it should form the core of these programmes.
This should include managerial and supervision staff. That they can be the front line of setting an example. That they are familiar enough with relevant policies and procedures to competently deal with substance misuse cases. And ultimately not be afraid to act. Turning a blind eye to misuse is not a solution.
Employee Assistance Programmes (EAP)
A haven for employees with substance misuse problems, EAPs can deliver information and advice on policies and procedures, as well as referrals for treatment and the monitoring thereof.
To this end, the Human Resources (HR) department needs to ensure these programmes are fully supported by ensuring information, education, and training initiatives, are properly planned and implemented.
How does this affect employees?
South Africans now enjoy more rights when it comes to what they are allowed to do in their homes than ever before. But those rights do not come without responsibility.
The right to privacy
Provided that it is for personal consumption only, no organisation, individual, or arm of state may violate an individual’s right privacy and possession. Primarily provided that restrictions on volumes and numbers of plants are observed.
The pitfalls of dependence
As with many intoxicating substances, frequent cannabis causes biochemical changes in the brain and behaviour may start changing. Apart from performance issues in the workplace, addiction harms relationships with family and friends. Users are advised not to over-indulge but rather to exercise their right to consume cannabis in moderation.
Responsibilities in the workplace
Employees need to be reception to information, education, and training provided. Co-workers with substance misuse problems should be encouraged to seek assistance through the appropriate channels. Else identified while being visibly intoxicated. A culture of silence only puts other employees at risk.
How do you draw up a substance misuse policy?
There remain many unanswered questions and the current limitations of cannabis testing make the drafting of policies and procedures for dealing with substance misuse very difficult. At best we can provide general basic guidelines, but strongly recommend legal specialists be brought in.
Some key guidelines are:
- No intoxicating substances are permitted on the premises. Neither is consumption. You should include a list of such substances and a clause that employees can check with their managers.
- Depending on the type of business operations, you may state that daily and/or random testing may/will take place. And for what substances.
- Should there be reasonable suspicion of intoxication while on the premises, a search may be conducted on an employee for the substances listed or a test conducted.
- Should illegal substances be found on the premises or on an employee it must immediately be reported to the SAPS. It may not be kept as evidence or disposed of by anyone in the organisation. A case can be opened against anyone, including management, who fails to report illegal substances found on the premises or on an employee.
The management of substance misuse and the repercussions of how the ruling will ultimately apply to the workplace are yet to be resolved. We face a period of exhaustively legal testing in our courts before that resolution comes. Let’s hope it’s a short wait.
At the time of writing, all efforts have been made to ensure that the content is correct. However, the advice given in this article should not be considered as legal advice. It is always prudent to consult a competent attorney regarding legal matters in the workplace.