International law including international conventions and policy documents have impacted on the drafting of domestic laws, policies and regulations in South Africa. It is evident that the current legislation pertaining to labour law will have to be developed in order to address the use and possession of cannabis in the workplace. Historically, the position was clear as cannabis for recreational purposes was strictly prohibited however, the status quo has now changed. The international sphere concerning medical cannabis is currently evolving and as such, the South African government will have to adhere to international standards and protocols in this regard.
In terms of Code of Good Practice employers are under a legal obligation to draft and implement policies regarding the use of alcohol and drugs in the workplace. Considering the status quo, it is going to be critical that employers evaluate all existing polices in the workplace in order to determine as to whether amendments and updates are required. In the circumstances, employers should draft and implement policies specifically regarding the use of cannabis in the workplace with particular attention given to the effects of CBD and THC. Another important factor is that employers must inform employees that the decriminalisation of cannabis does not entail the use of recreational cannabis in the workplace. To this end, the recreational use of cannabis should be treated in the same context as other illegal drugs and alcohol.
Employees should be informed that in terms of the policy, it will not be permissible to use and possess cannabis for recreational purposes within the workplace nor will they be permitted into the workplace should they be under the influence. This can only be fully implemented once the legislature has provided a directive as to how much cannabis containing THC must be present in one’s bloodstream in order to deem them as intoxicated. These policies must be adhered to by employees.
Management of suspected intoxication and testing protocols.
Workplace policies should provide for drug tests in order prove that an employee is under the influence and therefore unable to complete their tasks. Firstly, it is recommended that employees be subjected to an observation test first for the employer to ascertain as to whether the employee is intoxicated. The observation test works whereby an employer or designated person observes the employee for a certain period of time while the employee is performing his or her duties. The purpose of this test is to establish impairment. The observation test determines whether the employee has slurred speech, smells like cannabis and has bloodshot eyes which are signs of the use of cannabis. Should the employee exhibit signs of slurred speech, smells like cannabis or blood shot eyes, the employer should then make use of a medical blood test in order to test as to how much THC is in the bloodstream. This test is recommended as it is the most reliable as opposed to the urine and oral fluid test as they can exhibit false positives or false negative results. After this observation, the employer should conduct a meeting with the employee in order to ascertain the reasons for the employee’s impairment.
Employers should implement information sessions in order to educate employees regarding the usage of cannabis in the workplace. Furthermore, the Minister of Justice and Constitutional Development v Prince case has created a misconception regarding the usage of cannabis and as such, some employees are under the impression that they can use cannabis in the workplace. As such, human resource management should supervise educational sessions where employees will be fully informed as regards the position of the use of cannabis in South Africa currently. Trade unions should also be consulted in this regard.
Employers must stipulate what the consequences are of non-compliance with workplace policies regarding the use of cannabis in the workplace. Employees should be informed that they can be dismissed should they not comply with workplace standards or policies.
Legislation dealing specifically with cannabis in the workplace
There is a discrepancy in the law relating to the use of cannabis in South Africa currently. Firstly, it is recommended that the legislature provides guidelines as to the amount of cannabis that should be present in an individual blood stream in order to render the individual intoxicated. Furthermore, the legislature will have to implement a balance of interests of employers and employees in so far as the decriminalization of the use of cannabis in a private space or dwelling and the misconduct of an employee who enters the workplace whilst under the influence of cannabis. This is necessary seeing as cannabis can remain in one’s bloodstream for as long as two to three weeks. As such, an employee who has used cannabis at his private dwelling and during his or her private time, before working hours, will still have a trace of cannabis in his or her system when entering the workplace. This conduct will be regarded as the employee being under the influence of cannabis and this will justify the dismissal on the grounds of misconduct.
Employers should draft and implement accommodation policies whereby the use of medical cannabis will be permitted should an employee require the use thereof for medical purposes. This can be referred to as medically prescribed cannabis. The use thereof will be substantiated with a special permit issued by the Minister of Health. This permit must be disclosed to the employer prior to the use thereof. In addition, the permit and medical prescription can stipulate whether the employee is fit for work. This disclosure can lead to a positive and harmonious outcome in the workplace.
In conclusion the use of cannabis should be regulated. The use of cannabis for recreational purposes and the use of cannabis for medical cannabis should be dealt with in separate frameworks and legislated accordingly. It would be prudent to regulate the use thereof to avoid discrimination in the workplace.
This article was written by Zurayda Mayet. She is a director at Kleingeld Mayet and has acted for a wide range of clients that include multinational-corporations, government institutions, non-governmental organizations, private individuals, listed and unlisted companies. Her experience stretches across corporate, commercial, company and cannabis law in various sectors both in South Africa and Lesotho.