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Cannabis in the workplace: Uncharted territory, for now

Workplace policies about cultivation, use, and possession of cannabis need to be clear.
Employees might think that since private cannabis use has been decriminalised they can safely use it after hours – but it might still be in their systems when they return to work. Image: Cole Burston, Bloomberg

On September 18, 2018, the Constitutional Court decriminalised private cultivation, possession and use of cannabis.[1] At the time the judgment was handed down, it seemed unlikely that the workplace would fall within the scope of the judgment and unlikely that any reasonable employee would attempt to consume cannabis while at work. However, contrary to what the judgment contemplated, it happened that in a case involving an employee who consumed the drug outside working hours and thereafter reported for work the issue of where the workplace falls within the legislation was discussed.

The Cannabis for Private Purposes Bill is currently going through the legislative process and it is therefore a good time to review the Mthembu case.

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In the Mthembu case, some employees may have had the mistaken belief that since private use of cannabis had been decriminalised, employers would find nothing wrong with consumption of the drug outside working hours by an employee, without knowing that the drug would stay in their systems during working hours in a dangerous working environment (the wood and chip industry in this case).

The employees were dismissed for misconduct (testing positive for cannabis while at work).

After the employees were dismissed, they referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), which found the dismissal to have been fair on the basis of the reasonableness of the employer’s zero-tolerance policy which the employees were aware of.

This case is ground zero for what could be many employment matters related to cannabis and is especially important since legislative clarity is expected later this year as the Cannabis for Private Purposes Bill develops. Until then, both employers and employees must navigate through uncertainty.

What follows are some potential concerns that employers should address.

Substantive fairness

The commissioner rightfully considered substantive fairness and the guidelines in cases of dismissal. The reasoning of the commissioner is clear but, despite the regular discussions at the workplace, the employees seemed genuinely ignorant about the application of the employer’s policy in relation to use of cannabis in the workplace.[2]

Formally, the employer followed the correct procedures.

However, in relation to substantive fairness, it is arguable that the employees could not have reasonably been expected to be aware of the prohibition on having cannabis in their systems while at work if it had not been specifically explained to them prior to their dismissal, nor does it appear to have been explicitly provided for in the workplace policy.

Zero tolerance

The employer’s policy seems to have been intended to guard against employees “being under the influence of an intoxicating substance while on duty” and to apply a zero-tolerance approach toward substance abuse. It is not clear what the threshold for being under the influence of an intoxicating substance is – for example, would a spoonful of cough medicine containing alcohol push an employee over the limit? These uncertain aspects would need to be addressed in detail in an employer’s policy to prevent confusion.

Medical testing

In this case, a trained medical professional conducted a test with the consent of the employees and samples were sent to a laboratory for further testing.

Medical testing of employees is regulated by Section 7 of the Employment Equity Act (EEA) which provides that medical testing of an employee is prohibited unless legislation permits it or it is justifiable in light of the prevailing circumstances at the time of testing.[3] Consent might not always be possible, especially in circumstances where a clause in an employment contract “giving consent” might be found to be unlawful and unenforceable. This lack of consent may compromise employers and consequently attract liability.

It is also unclear whether, when an employer conducts a test, it would be doing so to ascertain the mere presence of a substance or whether there is a threshold to be met regarding the nature of various substances and duration of the effect of the intoxication. Even if it was clear, the Labour Relations Act (LRA) requires that such rules be valid and reasonable and that the employee has some form of awareness of the rule.[4] Another potential issue may be the validity of the form of testing when considering whether a dismissal was fair.

In upholding the employees’ dismissal, the commissioner considered the highly physically dangerous working environment. It seems that employees who work in an environment like this are more susceptible to dismissal than employees who work in less dangerous environments.

Would mere detection of cannabis in employees justify dismissal in all cases that are considered relatively dangerous, particularly considering that eating forms of cannabis can also negatively influence the cognition of employees in circumstances where consumption happens without an employee being aware of having done so?

Conclusion

Workplace policies about cultivation, use, and possession of cannabis need to be clear, and dismissals (despite zero-tolerance policies) would need to be procedurally and substantively fair.

Medical testing as it currently stands remains problematic. In order to have certainty it may be a good idea to have a threshold for cannabis found in the bloodstream and to take into account that consumption may have taken place outside of a particular period, as well as to provide written reasons to justify any action an employer may take.

This is uncharted territory that is likely to change with the Cannabis for Private Purposes Bill, although as it stands, it requires significant amendment to address these concerns.

[1] Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others as intervening parties, Doctors for Life International Inc as amicus curiaeand related matters 2018 (10) BCLR 1220 (CC).

[2] Par 35, 68, 86. The employees consistently and without hesitation admit that they smoked outside of work. That seems to indicate that they have a genuine belief that what they did was not in contravention of the employer’s policies. It is also unclear to me, and I’m sure other employees (since everyone takes different periods of time to metabolise the substance out of the system) when they would be able to consume the drug in relation to work.

[3] So far it seems that parties have to resort to litigation to determine what is justifiable or not.

[4] LRA Schedule 8(7) guidelines in cases for misconduct.

Yuri Tangur is a candidate attorney and Lavery Modise a consultant at Lawtons Africa.

COMMENTS   18

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It’s a fact that cannabis makes you lazy and stupid and exacerbates underlying psychiatric problems. If you smoke dope, you’re not welcome in my business, end of story.

I agree with your statement that marijuana has the potential to exacerbate psychiatric problems but you cant paint all consumers with the same brush as being “lazy and stupid”. There are incredibly successful people who consume cannabis, Elon Musk springs to mind. At the end of the day everyone confides in a vice, i highly doubt you share the opinion that everyone that consumes alcohol is lazy and stupid even though alcohol has long term effects on the brain.

It’s not a fact. 99% of the people that I know are not, 7 provinces.

Well, where do all those ANC supporters come from then?

Your assumption is just childish and you wouldn’t know because your circle is too small.

I am very successful in the corporate world and consume it responsibly. My harden boy, however, smokes cigarettes, use alcohol and hits’s his wife. Who would you rather employ?

There are lots of things that are legal, that I don’t do. Smoking cannabis is one of those. Common sense prevails.

Only the white-coat PhD working in the R&D-dept on a Cannabis farm, would be morally allowed to take an occasional “product quality test” 😉

Not even the cannabis Farm Manager would be allowed to dope! Hmmm….this opens a possible can of worms…
If cannabis is allowed per employer rules, would it constitute a Fringe Benefit which will arise on one’s employer-IRP5 tax certificate?!

A desperate SARS should take note: let’s tax those smoking legal cannabis at work, as a Fringe Benefit.
Last time I checked, the last utilised “source code” under Fringe Benefits is 3834….so my recommendation to SARS would be:

Code 3835: “Right of use of Cannabis (taxable)” exceeding the ISO scale as follows: smoke particles with a spherical morphology, and an average density EXCEEDING 1180±113 kg/m3…will be taxable. As determined by a Centrifugal Particle Mass Analyser (CPMA)

Code 3836″ “Non-taxable” when using cannabis below the level as in “3835” above. Fully exempt. NO smoking-log has to be maintained.

Code “3837”: if you receive MORE THAN ONE cannabis smoking fringe benefit running concurrently, the non-taxable allowance will revert to be taxable. A smoking-log must be maintained if deductions are to be claimed.

Code “3838”: smoking cannabis WITH YOUR BOSS…partially taxable F/B, with pro-rata’ing based on the number of years of employee-employer relationship / divided by overall years of employment-history X the Actual Use. A pro-rata exemption will apply.

Obviously, this cannabis exemption will be capped by a maximum of R1,250,000 per annum, and only accessible after the first 3 years of cannabis use has passed.

I was expecting 420 somewhere in your codes. So no vote for you.

*lol* …what are you smoking, Son?

There is no “420” source code.
And ‘3420’ relates to Betting & Bookmaking 😉

If the use of cannabis could help a worker to apply his mind when he is in control of complicated and expensive equipment in a dangerous situation, the International Space Station would have been filled with a haze of dope smoke, Bob Marley would have been the first man on the moon, and the most famous words of the mission would have been “Don’t worry, about a thing, cause every little thing’s gonna be all right”.

What do you mean it’s a fact.

You have done very little research and clearly have no idea what you are talking about.

Legalization of Cannabis is long overdue and I am very happy that we are becoming more progressive and not stuck in our ways.

Obviously you can’t smoke a joint at work , but what you do in your own time is your problem and if it works for you , then great

So because I vape THC in the evening to assist with sleeping I’m now a criminal and can lose my job, as well as being lazy and stupid, according to most here.

Well i support you as long as you don’t come to work under the influence. People are far to critical of THC and far to accepting of alcohol. Still, don’t work or drive under the influence of either.

to = too. case in point. comment written after few glasses of whiskey

Allot of software developers smoke cannabis.
I have never seen anyone do it in working hours however. Nor do I see why anyone would think an employer should be forced to put up with it anymore than they would with alcohol at work. But what you do in your own time is between you and your mistress, unless she’s your boss’s wife.

I discussed this exact issue with one of my partners today. We have a cannabis use / abuse issue at one of our business units WHILE THEY ARE ON DUTY. This I have a problem with, but I don’t have a problem with people smoking / vaping / drinking tea etc in their private time. As most of you know, THC stays in the system for a lot longer and will easily show up in a test after a few days after consuming, yet the person will definitely not be under the influence if they hadn’t taken before the test.

IMO, most definitely a grey area and one that two of our legal advisors have scratched their heads over. To my knowledge, there is no type of “field sobriety” test for being high?

My 2c worth:

Perhaps leave the rule of Cannabis use for staff, totally OUT of the employer rules, and base one’s Disciplinary Conduct rules judged against employees actual WORK PERFORMANCE.

Then the “reason” for certain employees’ under-performance becomes a non issue……but that corrective steps are to be taken / disciplinary hearing will ensue TO CORRECT WORK PERFORMANCE. (Not because he/she smokes this or that)

After 3rd disciplinary hearing for the same lack of performance….either demotion or “you’re fired” as Trump would say.

(…if the employee experimented with cannabis, with good intent, to see IF work performance can be improved, and when it turned out not working…then employee can decide to quit cannabis after 1st disciplinary hearing. Easy. Just like that. There appear to be no cannabis addiction issues, when I read some others’ comments implying that “it’s okay”.)

End of comments.

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