Pre cautionionary suspension approved tool for the employer
October 5, 2024Since the enactment of the Cannabis Act, several news outlets have suggested that cannabis use is now fully legal. However, before employees feel encouraged to partake, it’s crucial to clarify the findings of the High Court.
In *Prince v Minister of Justice and Constitutional Development and Others* [2017] ZAWCHC 30, the Western Cape High Court stated that the existing criminal laws regarding cannabis are disproportionately harsh concerning personal use and consumption. The Court deemed certain provisions of the Drugs and Drug Trafficking Act, No 140 of 1992, and the Medicines and Related Substances Control Act, No 101 of 1965, inconsistent with the Constitution, as they infringe on private use for personal purposes. To allow Parliament time to amend the legislation, the Court suspended its declaration of invalidity for two years.
If Parliament revises the relevant laws in response to the *Prince* judgment, employers may need to reassess how they manage personal cannabis use in the workplace.
Many employers already have policies addressing alcohol and drug abuse. Depending on the industry and the nature of the employees’ roles, the approach to alcohol-related issues may differ. Generally, employers maintain a zero-tolerance stance towards illegal drug use.
Testing for alcohol is relatively straightforward. Breathalyzers provide a quick way to estimate blood alcohol levels through breath analysis, allowing employers to gauge potential physical and mental impairment based on blood alcohol concentration.
Should personal cannabis use be legalized, employees who previously refrained from using it due to legal concerns may feel more liberated to partake, potentially increasing focus on cannabis use and its implications for the workplace.
There are various methods for testing cannabis, including urine, hair, and blood analysis. Cannabis can be detected for days to months after use, whereas alcohol typically leaves the bloodstream within hours. Unlike alcohol, the effects of cannabis on an employee’s performance are less understood, and testing can be more complicated and time-consuming. Moreover, cannabis tests may not accurately assess an employee’s level of impairment.
A nuanced approach will be necessary for addressing cannabis use in the workplace compared to alcohol. For example, an employee who uses cannabis in the morning might function normally at work, even if they are technically under the influence. Conversely, an employee who legally consumes cannabis on a Friday night may test positive on Monday, despite being unimpaired.
Given these complexities, employers may find it challenging to justify disciplinary actions, including dismissal, in such cases. While employers can prohibit cannabis use at work, monitoring compliance with a legal drug that may or may not impair performance poses challenges.
Similar to alcohol abuse, employers can take disciplinary action based on observable effects of cannabis use, even without a formal test, if an employee is clearly too impaired to perform their duties or poses a risk to others.
Any workplace policy addressing cannabis use must consider factors such as consent to testing, testing methods, the nature of the business, employee roles, the circumstances surrounding any incidents, observable impairment levels, and an employee’s history with cannabis or other substances.
Any testing methods implemented must comply with Section 7 of the Employment Equity Act, No 55 of 1998. This section stipulates that tests must either be legally required or justified based on medical facts, employment conditions, social policy, fair employee benefits distribution, or job requirements. Employers wishing to implement random cannabis testing must ensure that it is voluntary, confidential, and free from discrimination or victimization.
It’s essential for employers to differentiate between misconduct and incapacity related to cannabis use. If an employee demonstrates an addiction to cannabis, the employer should consider whether counselling and rehabilitation are appropriate, as outlined in the Code of Good Practice: Dismissals.
Although employees may legally use cannabis at home, this does not entitle them to come to work under the influence or with impaired abilities. Employees must adhere to workplace rules and policies. Proving impairment or influence in the workplace will pose significant challenges for employers.