On 18 September 2018, the Constitutional Court declared various sections of the Drug and Drug Trafficking Act as well as the Medicines and Related Substances Control Act invalid. The effect of the invalidity of these sections, the Court ruled, is that the use, possession, and cultivation of cannabis by adults is no longer a criminal offence in a private setting. The Court has provided Parliament with a period of 24 months to enact legislation that will regulate the private use, possession and cultivation of cannabis.
Naturally, this will have an effect on all workplaces across South Africa. Reason being that, unlike alcohol, cannabis remains in one’s bloodstream for days, weeks and even months after the user has ceased to be under its influence. It is, therefore, more difficult to determine whether employees are “under the influence” while at work. Why is this such a concern in workplaces that have taken a liberal approach to cannabis? Well, because the General Safety Regulations which govern health and safety in all workplaces states that employers may “not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace”. Cannabis, as beneficial as some claim it is, is considered an intoxicating substance.
“So, what does this all mean for employers?”
Firstly, understand that there is an obligation on you as an employer to regulate your workplace in respect of drugs and alcohol. Secondly, understand that the regulation and testing of cannabis is not going to be as easy as that of alcohol, given the life cycle of cannabis in a person’s bloodstream. In terms of testing for cannabis, outsourced urine tests can cost an employer approximately R2000.00 per test and could produce a positive result for the presence of cannabis in the individual’s bloodstream even though he or she has not indulged in cannabis in the days preceding the test and is therefore not under the influence of cannabis.
“Fine – we’ll simply implement a zero-tolerance policy!”
The Labour Appeal Court in Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others held that a zero-tolerance policy will not necessarily render a dismissal fair should the dismissal relate to the misconduct governed by the zero-tolerance policy. The Court held that proportionality and appropriateness of the dismissal still needed to be considered, notwithstanding the employer’s “zero tolerance” policy. This means that, for example, if you adopt a zero-tolerance policy for the positive testing of cannabis but an employee tests positive, after having indulged in cannabis four days prior, it is likely that his or her dismissal will not be deemed automatically fair because you have a zero-tolerance policy.
“What can employer’s do?”
Establishing a Drug and Alcohol policy that is reliant on observation testing may be the most effective and immediate way for employers to regulate this scenario until legislation, and case law, provide further clarity. Saliva testing may be an alternative in that it provides a positive reading only if cannabis was ingested or smoked within a period of six hours prior to the test. Get in contact with us if you would like assistance in establishing an effective drug and alcohol policy or in amending your current policy so as to align with the recent Constitutional Court’s decision.