Citizens have the right, to cultivate, possess and use cannabis in private. The use of cannabis can also be consumed at places other than one’s house, as long as it is not in public. This operation was however suspended for a period of two years from 17 March 2017 in order to give parliament time to make the necessary amendments to section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 102 of 1995. South Africa’s Parliament is expected to deal with this important piece of legislation during 2022 and employers must be prepared to deal with this issue by including a clause in their contract of employment and in their policies and procedures what will happen if an employee is found to be under the influence of Cannabis.

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 that have decriminalised the use of cannabis.

The Cannabis for Private Purposes Bill is currently making its way through parliament following its introduction in September 2020. The bill outlines possession rules for cannabis users at home and people who wish to cultivate the plant. It also introduces new offences and provisions for people who previously received a criminal record for cannabis possession.

The draft bill states that an adult person may for personal use:

  • Possess the prescribed quantity of cannabis plant cultivation material;
  • Cultivate the prescribed quantity of cannabis plants in a private place;
  • Possess in private the prescribed quantity of cannabis in a public place;
  • Possess the prescribed quantity of cannabis in a private place;
  • Possess in private the prescribed quantity of cannabis plants in a public place. 

The bill defines a ‘private place’ as any place, including a building, house, room, shed, hut, tent, mobile home, caravan, boat or land or any portion thereof, to which the public does not have access as of right.

Cannabis is a psychotropic product from the plant Cannabis sativa, and is potentially maladaptive. It has been used inter alia for medical, religious and social reasons. The stem or non-potent part of the plant is used to manufacture paper, hemp, rope, string, textiles and clothing. It is however much less harmful than for instance heroin or cocaine but is seen as an entry drug.

The effects of cannabis consumption vary due to a number of factors such as the method of administration, cannabis form, frequency and period of use. Some effects can include euphoria, relaxation, relief from stress and pain, increased appetite, impaired motor neuron skills, confusion, loss of concentration and decreased motivation. Withdrawal symptoms may include headaches, anxiety, depression, and sleep disturbance.

The effects normally reach their peak within 30 minutes and can last up to 3 hours, but it may remain detectable in the bloodstream for days after consumption. It can be detected between 3 to 5 days after occasional consumption, up to 15 days for heavy users and up to 30 days for chronic users. Unlike with alcohol, one cannot determine a level of impairment based on test results. Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence due to its intoxicating nature and presence in the system.

Per the Mine Health and Safety Act of 1996, an employer must provide conditions for safe operation, and employees must take reasonable care to protect their own health and safety and that of other employees. The Act further states that no person that is in a state of intoxication, may be allowed access to a mine. Regulation 4.7.1 of the Minerals Act 50 of 1991 also confirms the aforementioned in addition, to the General Safety Regulation 2A of the Occupational Health and Safety Act, requires that an employer may not allow any person who is, or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. Neither may an Employer allow any person to have any intoxicating substances in his or her possession in the workplace. A failure to act can result in fines for the employer of R5000 or one year imprisonment in case of an incident that leads to death or injury.

The challenge with Cannabis is that it has varying effects on people. Occasional users may be under the influence after using small doses whilst seasoned users may not be under the influence after using the same amounts. Defining “under the influence” is therefore the problem in the workplace as with alcohol and should not be used as the basis to discipline employees. Employers must rather use the fact that an employee must not test positive for Cannabis in their system, The policy will be justifiable due to the inherent risk involved like the effects of Cannabis as impaired concentration, confusion, euphoria, loss of concentration and body coordination will make operation in business dangerous, not only for other employees but for the public in general. It is especially dangerous for drivers and employees working in an industry with heavy machinery. It must be reiterated that the mere use of Cannabis may not necessarily impair an employee’s ability to work and therein lies the constitutional challenge. 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. 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

Although an employee may now claim to have a legal right to private consumption of cannabis, the Company Policies and Procedures is still in place and an employee cannot raise the Constitutional Court judgement to exonerate him from any wrongdoing. Cannabis is an intoxicating substance and one must consider the requirements of other legislation to determine whether an employee may now be allowed to enter a workplace with cannabis in his possession or to consume it in private prior to reporting for duty. 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, 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. There must be an implied term (in the contract) that says you are not allowed to work under the influence of an intoxicating substance. Employees will then be subjected to a disciplinary process.
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. Adults are perfectly entitled to consume alcohol anywhere – but simply because it is not criminalised don’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. 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. 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).

Employees must be warned that unlike with alcohol that will not be detectable 12 hours after the last drink, the usage of Cannabis may well result in dismissal for testing positive for Cannabis in the system, in the workplace, up to 30 days later.

Based on the requirements of the aforementioned legislation, it is reasonable to conclude that the Constitutional Court judgement will not offer any protection to employees against disciplinary action should they act in contravention of Company Policy and Procedure, and stemming from legislation.

It is important that employers must make it clear to employees and must have a zero-tolerance policy towards the usage of Cannabis. The zero-tolerance policy must clearly state that the policy is not, to prohibit employees being tested positive for being under the influence, but rather prohibits employees from testing positive for cannabis, regardless of the amount, in their system.

This zero-tolerance policy as described in the Policies and Procedures of the Company, of testing positive for Cannabis in the system, is to enable the employer to act consistently in all cases and not leave any room for doubt and create confusion amongst employees, that the employer will act decisively if any employee is tested positive for Cannabis in their system.

Immediate state of intoxication

The testing for cannabis is going to be a prime factor for employers going forward. 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. 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.

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. 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. The nature of the intoxicating substance, whether it is cannabis or any other prohibited substance, is not important. All cases are treated the same.

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