The consumption, possession and cultivation of cannabis may have been decriminalised in certain circumstances, but the order of the Constitutional Court certainly has no bearing on the rules of the workplace.
South Africa has joined the ranks of 33 other countries who have decriminalised the use of cannabis.
In South Africa it will only be legal to grow and consume cannabis for private use, in private.
The workplace can under no circumstances be considered “private”, including the private vehicles of employees in the parking lot, or the restrooms – even if people may have a legitimate expectation of privacy, it remains public places, frequented by other people.
Gavin Stansfield, a director of law firm Cliffe Dekker Hofmeyr’s employment practice, says employees will not be committing a criminal offence if they are smoking cannabis at home.
But it will become a problem if they arrive at work under the influence of an intoxicating substance.
Health and safety
“If the nature of your employment is such that you are governed by occupational health and safety legislation, which says you may not operate a certain type of machine under the influence of an intoxicating substance, and you do come to work under the influence and operate that machine, it will be a criminal offence.
It will be a breach of the specific health and safety regulations,” says Stansfield.
He says even if an employee is not governed by health and safety legislation, people coming to the workplace under the influence will be committing a breach of their contract of employment.
“I am sure there will be an implied term (in the contract) that says you are not allowed to work under the influence of an intoxicating substance.”
People may then be subjected to a disciplinary process.
It is worthwhile to review current policies to ensure that companies deal with the issue of cannabis use in the workplace.
Anastasia Vatalidis, head of Werksmans Attorneys’ labour and employment practice, says the use of cannabis and the impact of using it in the workplace should be seen in the same light as the use of alcohol.
“Adults are perfectly entitled to consume alcohol anywhere – but simply because it is not criminalised doesn’t mean that it would be permissible in a working environment.”
Employers must have clear policies that set out the rules with regards to the use of alcohol or any other intoxicating substance – which now include cannabis.
“The rules should not be different for cannabis than for any other intoxicating substance. Employees cannot arrive at work under the influence of any intoxicating substance, nor can they consume any intoxicating substance while at work.”
Employers are well advised to clarify the position – so that employees are informed about the consequences should they arrive under the influence of any intoxicating substance, including cannabis.
Vatalidis anticipates some challenges around the enforcement of cannabis use.
Cigarettes are not regarded as an intoxicating substance; employees may smoke a cigarette in their car before they arrive for work.
Therefore there might well be the argument that an employee smoked a cigarette, and not cannabis, and is not intoxicated.
“Employers will have to train their line managers and security personnel to be able to draw a distinction between someone who may have smoked something or consumed something, including cannabis, who is under the influence of intoxicating substances while at work.”
Stansfield says the Constitutional Court has left it to the legislature (Parliament) to determine the level that can be considered for private consumption, as well as the amount that a person will be allowed to legally have in their possession (before it is considered as dealing).
Immediate state of intoxication
“The testing for cannabis is going to be a prime factor for employers going forward,” says Stansfield.
According to Stansfield, there is no reliable test that is able to determine “the immediate state of intoxication” for cannabis as with a breathalyser test for alcohol.
There are several tests to determine if it is in your bloodstream (urine, saliva and hair follicles), but it could be that an employee smoked it at the start of the weekend and it still shows on Monday.
Cannabinoids attach to the fat cells in the body. Some people may still test positive for marijuana up to a month after having consumed it, depending on how prolific the use is.
Infrequent users may still test positive between three to seven days since they last used it.
Stansfield says it is going to pose an enormous problem for employers to determine with the use of a “test off the shelf” the immediate state of intoxication, as there will be a lot of false positives.
“Unlike alcohol, the effects of cannabis use on the employee’s ability to perform in the workplace are not as well-known,” says Stansfield.
The balance of probability
Managers must be aware of “visible symptoms” of intoxication – bloodshot eyes, dry mouth, aggression, paranoia and the smell of cannabis smoke.
Incidents should be well-recorded for use in disciplinary action, he says.
Vatalidis says signs of slurred speech, swaying, or an uncharacteristic untidiness of a person are tried and tested criteria to determine intoxication on a balance of probability.
She says the nature of the intoxicating substance, whether it is cannabis or any other prohibited substance, is not important. All cases are treated the same.
Cannabis has been around for a long time, says Vatalidis.
“I do not think the change in legislation is going to open the floodgates for abuse or problems in the workplace.”
Time will tell.