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Cannabis in the workplace: ‘High’ policy standards.

May 4, 2023

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CANNABIS IN THE WORKPLACE
‘HIGH’ POLICY STANDARDS

By Rona Bekker

Since the Constitutional Court judgement in the Prince-matter in 2018, which did no more than legalise the possession and use of cannabis “in private”, employers were uncertain as to the effect this may have on their ability to regulate the use and possession of this drug by their employees in the workplace. There was an uncertainty surrounding the necessary workplace policies to ensure the continuance of a safe working environment, without encroaching upon the fundamental freedoms and rights of employees.
 
Although it has always been clear that ‘being under the influence of a substance’ during working hours can lead to dismissal, merely ‘presenting with traces of a substance in the bloodstream’, was not a clear-cut cause for dismissal after the Prince-matter.

However, in 2022, three definitive judgements were handed down by the Labour Appeal Court which provided clarity and assurance to employers on the best practice and strongest possible policy considerations to deal with cannabis use among its employees in the workplace.

From these judgements, the following principles were evident:

  • the Constitutional Court judgement in the Prince-matter does not offer any protection to employees against disciplinary action if they contravene company policies prohibiting the use and consequent traces of cannabis in the bloodstream;
  • an employee relying on a medical condition that requires the use of cannabis as a treatment, must prove this fact by expert evidence;
  • use of a substance while off duty is not a defence against the breach of company policy. Therefore, employees cannot argue non-contravention with a zero-tolerance drug- and alcohol use policy of an employer by relying on the fact that they are not under the influence of the substance at work, or that their ability to perform their functions is not impaired while the substance is still detectable in the bloodstream;
  • a zero-tolerance drug- and alcohol use policy, including traces thereof in the bloodstream, is valid, legal, fair and may be strictly implemented by an employer; and
  • it is of great importance that all employees are aware of their employer’s policy regarding drug- and alcohol use, as well as the consequences for the contravention thereof.

Currently, the Cannabis for Private Purposes Bill is making its way through the legislative process, but does not affect the power of an employer to determine its own workplace policies with regards to cannabis. Section 8(1) of the Occupational Health and Safety Act determines that every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. 

The safest manner in which to avoid confusion and ensure clarity in the workplace, is to draft a drug-and alcohol policy which states the position of the employer and its tolerance towards the possession, use, influence, tracing and testing for substances, as well as the consequences for contravention thereof in no uncertain terms.

Should you require more information or assistance in this regard, please contact the relevant NEASA Regional Office.

Rona Bekker is the Policy Manager at the National Employers’ Association of South Africa (NEASA).

For more information:
NEASA Media Department
media@neasa.co.za

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