A landmark court ruling by the Constitutional Court that decriminalised the private and personal use of cannabis could leave employers in a pickle when it comes to health and safety in the workplace, experts have said.
This is because it may be difficult to determine for certain whether an employee is under the influence of cannabis or not when they come to work, which could have implications – particularly for employees performing potentially hazardous work.
The Occupational Health and Safety Act states that no person who is or appears to be intoxicated may enter or remain at a workplace. They may also not have in their possession, partake of, or offer any other person intoxicating liquor or drugs, it adds.
The exception is medicine, where the employer may only allow them to perform their duties if the side effects are not a threat to anybody's health or safety.
Why it's hard to test for cannabis
Gerhard Roets, Construction Health & Safety Manager at the Master Builders Association North, says the cannabis ruling left the construction industry scratching heads over how to ensure employee safety.
"In practical terms, the issue for employers is how to determine whether workers are under the influence of cannabis or not when they come to work."
This is because the metabolism of cannabis is complex. Delta 9-tetrahydrocannabinol (THC) is the psychoactive substance in cannabis that provides the "high".
Hemp oils derived from cannabis seeds are used medicinally – the health benefits are associated with the non-psychoactive cannabidol (CBD). But hemp products may contain some THC, which could also show up in drug tests.
Furthermore, a standard urine test just screens for the metabolites of cannabis, which can show up long after the psychoactive effects have worn off.
All this means is that a positive test may not reveal anything that incriminates the employee.
"One needs to understand that the Court’s ruling only decriminalises the possession, consumption and private cultivation of cannabis for private use in a private space. This means that employers remain responsible for providing and maintaining a work environment that is safe for all," says Roets.
The Master Builders Association believes the main issue is that there is not an effective, standardised testing method available that can be used across industries.
"Until the testing issue is resolved, and the state of being ‘under the influence of cannabis’ is medically defined, employers will have to tread carefully," says Roets.
But do you need a test?
Labour lawyer Michael Bagraim, also a DA MP and the party's spokesperson on labour, says regardless of grey areas around testing, employers will have to rely on good old-fashioned observation for now – and employees should be aware that they don't need a positive test in order to risk dismissal.
"Just like alcohol, cannabis intoxication is not acceptable at the workplace," he told Fin24.
"On many occasions, and there have been many cases to this effect, the dismissal takes place after physical interpretation of intoxication. For instance, with alcohol you would notice slurred speech, bloodshot eyes, erratic behaviour and even breath smelling of alcohol. On the strength of the witness who notices this, a disciplinary inquiry is held and the individual can be dismissed."
He says it is "slightly more difficult" with cannabis, but "you can palpably see if someone is intoxicated or not".
"An eye witness is often stronger than the outcome of a positive result in a test," he explains. "On many occasions an employee refuses a test and you cannot force someone. Also, cannabis can be detected for over a month after its use. A person might not be intoxicated but will still fail the test. A much stronger argument is an individual noticed to be intoxicated, with erratic behaviour."
Professor Halton Cheadle, partner at specialist labour law firm BCHC, told media earlier this month that companies may have to reconsider their policies that deal with substance abuse. It's important to review policies to ensure employers are equipped to take care of their employees' safety, Cheadle said.
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