How to deal with cannabis in the work­place

South Africa has joined the ranks of many other coun­tries in le­gal­is­ing cannabis for per­sonal use. It is, how­ever, an in­tox­i­cat­ing sub­stance and em­ploy­ers should have clear poli­cies on the use of such sub­stances.

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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.

The work­place can un­der no cir­cum­stances be con­sid­ered “pri­vate”, in­clud­ing the pri­vate ve­hi­cles of em­ploy­ees in the park­ing lot, or the re­strooms.

“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.”

Clear poli­cies

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. ■ ed­i­to­rial@fin­week.co.za

Gavin Stans­field Anas­ta­sia Vata­l­idis Head of Werks­mans At­tor­neys’ labour and em­ploy­ment prac­tice

Direc­tor of Cliffe Dekker Hofmeyr’s em­ploy­ment prac­tice

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