By Danny Hodgson edited by Prof Darcy du Toit
On 18 September 2018 the Constitutional Court handed down judgment in the consolidated matter of Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others  ZACC 30. The Court held that certain provisions of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and Medicines and Related Substances Control Act 101 of 1965 are unconstitutional in that they infringe on the right to privacy. The effect of this judgment is that adult persons are permitted to use or possess cannabis in private for purposes of personal consumption and are permitted to cultivate cannabis in a private place for personal consumption. Cannabis can therefore no longer be described as an illegal substance and employers will have to reconsider their policies that deal with substance use in light of this change. This article aims to provide some insight into how employers should regulate cannabis in their policies and how these policies should be implemented.
The Occupational Health and Safety Act 85 of 1993
The relevant provisions of this Act are:
- Section 8(1) states that, ‘every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.’
- Item 2A of the Act’s General Safety Regulations states –
- ‘(1) Subject to the provisions of sub-regulation (3), an employer or a user, as the case may be, shall 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.
- (2) Subject to the provisions of sub-regulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.
- (3) An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.’
An employer that fails to comply with its duties in terms the Act shall be guilty of an offence in terms of section 38(1) of the Act and shall be liable on conviction to a fine not exceeding R50 000 or imprisonment for a period not exceeding one year, or both. Furthermore, any person who fails to comply with the Regulations shall be guilty of an offence and liable, on conviction to a fine or imprisonment for a period not exceeding six months. In order to comply with these provisions and Regulations employers are obliged to implement policies and put measures in place to limit any potential risk of harm in the workplace. Such measures include identifying intoxicated employees through observation and drug testing and excluding them from the workplace. Failure to create and implement these policies will amount to a criminal offence.
Intoxicating effects of cannabis
The intoxicating effects of alcohol are well known and, for that reason, most employers have a zero tolerance policy against intoxication at work. The intoxicating effects of cannabis, on the other hand, are not as well-known and although it may not impair a person to the same extent as alcohol, it is a psychoactive drug that has been found to have the following effects:
- Dizziness, drowsiness, feeling faint or lightheaded;
- Impaired memory and disturbances in attention, concentration and ability to think and make decisions;
- Suspiciousness, nervousness, episodes of anxiety, paranoia, and
- Impairment of motor skills and perception.
From these effects one can see that it is undesirable to have employees intoxicated by cannabis at work as their cognitive abilities are impaired and they could potentially pose a risk to themselves and others when it comes to operating machinery, driving a vehicle or performing other dangerous work. It is therefore suggested that cannabis be regulated in the same manner as alcohol and a zero tolerance policy should be applied.
How should cannabis be regulated?
Employees using cannabis at the workplace
As stated above, adult persons are only permitted to use cannabis in private. The Court did not confine “private” to a home or dwelling, as the Western Cape High Court had done, and did not provide any test to determine what it means. It did, however, state that the right to privacy confers a very high level of protection on an individual’s intimate personal sphere but, as soon as that person enters into relationships outside the intimate sphere, the individual’s activities acquire a social dimension. Employees are in constant contact with one another, they deal with clients and other members of the public and are generally in a social environment. The workplace therefore falls outside an individual’s intimate personal sphere and will not be considered private. This being so, the use of cannabis at the workplace will constitute an offence in terms of section 4(b) of the Drugs Act. Employers should therefore have a provision in their disciplinary policy stating that any employee found using cannabis in the workplace shall be reported to the South African Police Service for criminal investigation.
Dealing with cannabis use at the workplace
In order for an employer to meet its above-mentioned statutory obligations, it needs to implement measures to identify employees intoxicated by cannabis and exclude them from the workplace. The first step should be identifying intoxicated employees through observation. Line managers and supervisors should be given a checklist to fill in noting observable signs of intoxication. Some indicators to look out for include: red, glossy or swollen eyes, dry mouth, muscle tremors, impaired speech, abnormal behaviour and an odour of cannabis smoke. Once the manager has made a finding based on observable factors, they should inform the employee that he or she is regarded as being under the influence and, should they wish to disprove this finding, they are entitled to take a drug test.
With alcohol it is easy to prove intoxication as the employee can take a breathalyser test which will immediately reflect their blood/alcohol concentration. With cannabis it is a lot more difficult as the substance stays in the body much longer even after the intoxicating effects have worn off and there is no reliable test to determine the current state of intoxication. Most studies reveal that the acute effects of cannabis generally only last between 2 to 6 hours after use. However, a urine test on an occasional user can test positive for up to 4 days after the last use of cannabis and a frequent user can test positive for over a month after the last use of cannabis. The purpose of these tests is therefore not to determine intoxication but rather whether the person is a user of cannabis.
There are, however, saliva tests that have been held to be the most advanced type of test for signalling recent use. This is because saliva tests can only detect cannabis use for up to 24 hours after use. There are some saliva tests with higher cut-off levels that claim to detect cannabis for up to 6 hours after the last use of cannabis. These tests are therefore far better suited for determining whether an employee is still intoxicated and should be the preferred method.
Disciplining cannabis-intoxicated employees
Once an employee is found to be intoxicated at the workplace an investigation should be initiated with regard to possible disciplinary action. Employees who are found to have been intoxicated at the workplace may be dismissed for misconduct for contravening the employer’s policy and the Act after following a fair procedure. There may be instances when the employer may have to treat the intoxication as an incapacity issue and assist the employee with counselling or rehabilitation. The employer will only have a duty to treat it as an incapacity issue if the employee has tendered medical evidence to prove the incapacity or has utilised the employer’s policy to assist them with a substance abuse problem, as was held in Superstore Mining (Pty) Ltd v CCMA and Others  ZALCCT.
The object of pre-employment testing is to determine whether the applicant is a user of an illegal substance and not whether they are intoxicated. As cannabis can no longer be regarded as an illegal substance, an employer may not be entitled to refuse to appoint an employee on the basis that the employee tested positive for cannabis. There would have to be a strong operational justification for a prohibition on any use of cannabis, failing which the refusal may constitute unfair discrimination on an arbitrary ground under section 6(1) of the Employment Equity Act, 55 of 1998.
Possession at the workplace
Adult persons are permitted to legally possess cannabis on their person or in their possession, such as their bag or car even when they are not in private as long as the cannabis is not used and not exposed to the public. The General Safety Regulations referred to above however state that no person at the workplace shall have in their possession any intoxicating liquor or drugs. Possession of cannabis should therefore be regulated in the employer’s policy in the same manner as provided for in the Regulations.
In light of the Constitutional Court judgment, cannabis use is likely to increase due to its new legal status and a corresponding change in societal norms. It is therefore important for employers to review their policies to ensure that they can adequately deal with intoxicated employees and comply with their obligations under the Act and Regulations. One of the biggest changes with regard to enforcing substance use policies will be with regard to testing. In the past the focus was on determining whether an employee is a user of cannabis and therefore urine, blood and hair follicle testing was appropriate. Now the focus is on whether the employee is intoxicated by cannabis at the workplace and therefore observational checklists need to be utilised as well as saliva tests in order to signal recent use.