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Employees and cannabis: Experts explain how not to make a hash of it

Aug 22 2019 18:18
Khulekani Magubane, Fin24

Webber Wentzel partner Lizle Louw and professional support lawyer Shane Johnson have warned in a joint advisory that the decriminalisation of private cannabis use, possession and cultivation does not necessarily mean that it is high time for the herb to make its way to your work desk.

The Constitutional Court in September last year ruled in a matter between the minister of justice and constitutional development and Garreth Prince that the private use, possession and cultivation of cannabis would no longer be criminal, but reaffirmed limits on commercial production and public use.

The Webber Wentzel specialists warned that a scenario of using cannabis in the workplace or reporting for duty whilst under the influence of smoked cannabis may not be very different to employees using alcohol in private and then reporting for work and that this should be seriously considered by employees.

"Prince [the ruling] does not affect an employer's obligation to maintain a safe working environment for all of its employees, which includes prohibiting employees who are intoxicated from entering the workplace, and policies and testing applicable to alcohol use in the workplace are not likely to be appropriate in dealing with cannabis use," the specialists write.

The release said while use, possession and cultivation is not confined to one's home, it will be difficult for an employee to argue that the workplace constitutes a private space, as the use of cannabis in public place or in the presence of non-consenting adult persons remains prohibited.

"Cannabis can affect an employee's occupational capacity in various ways, including performing tasks more slowly, performing poorly when handling routine, monotonous tasks, difficulty in multi-tasking, difficulty in taking instructions from superiors, difficulty in making crucial decisions, difficulty in operating machinery or motor vehicles," they argue.

The specialists add that medical testing of employees remains regulated by Section 7 of the Employment Equity Act and medical testing of employees could still be justified by an employer.

"An employer who wishes to test an employee for cannabis may be able to justify such testing relying on the provisions of the Employment Equity Act, " they say.

Louw and Johnson argue that zero-tolerance policies on cannabis could become trickier to enforce by employers in future prospectively.

"Zero tolerance policies may not be justifiable. Employers and their occupational medical practitioners should consider the safety requirements at the workplace and determine whether a zero-tolerance approach is justifiable or whether there is an acceptable limit of cannabis trace after some time of use," they add.

According to Louw and Johnson, traces of cannabis may remain in the body for months after use, so employers may need to, instead, regulate cannabis as a separate issue and by implication through a separate policy and procedure.



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