So what do you do if an employee comes to work high?
Do exactly what you would do if they came to work drunk – the Occupational Health and Safety Act and the Mine Health and Safety Act still apply.
Employees should not be misled into believing the Constitutional Court’s decision to legalise the private use of dagga entitles them to behave in previously unacceptable ways, such as smoking dagga during breaks or arriving at
Employers still have to enforce health and safety policies and rules, and, according to the law, may not “permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace”.
Last week’s ruling won’t open any floodgates allowing people to smoke it whenever they want to, and it doesn’t give workers the right to be stoned at work.
The ruling only permits users to smoke marijuana in their homes, back yards, apartments or on their balconies.
Most companies have developed substance abuse policies and procedures, especially in high-risk industries such as the construction and mining sectors.
By law, employers may not permit anyone who appears to be under the influence of alcohol or drugs to remain at work. And employees certainly aren’t allowed to bring dagga to work, or to offer it to anyone.
Employees under the influence of dagga are still dangerous and it is still illegal, according to the Occupational Health and Safety Act.
Even a prescription for medical marijuana doesn’t entitle an employee to drive a car while impaired, or compromise their or any one else’s safety.
Employers still have the right to conduct a test for dagga and hold employees accountable in the case of a positive result.
But so much depends on how a company conducts its drug testing regime (some have adopted a zero-tolerance drug policy), and on what its substance abuse testing policy and procedures say.
Human resources and health and safety professionals are up against an ill-defined wall.
But if you are an employer, there are still some things you can do, including:
. Declare your workplace “drug free”;
. Update company policies and provide training on all workplace policies to ensure workers clearly understand what they can and cannot do;
. Policies for alcohol or substance abuse should immediately also include dagga;
. Ask employees with prescriptions for medical marijuana to disclose this to prevent undue prejudice and related disciplinary processes; and
. Consult employees and workplace forums on the implementation of workplace policies and procedures to avoid legal challenges.
Skeepers is an independent governance risk and compliance specialist