The impact of cannabis legality and usage in the workplace
The recent Constitutional Court (CC) case of Minister of Justice and Constitutional Development and Others v Garreth Prince and Others (CCT 108/17-18) will go down as a historic and poignant ruling for years to come. The CC ruled unanimously on the contentious issues relating to the use, possession and cultivation of cannabis by adult persons in private.
The Judgement undoubtedly has wide implications for employers, employees and society. The Judgement also raised other employment-related questions relating to incapacity, occupation health and safety, discipline and indirect liability within the context of drug (in specific cannabis) use and abuse.
However, what does this in fact mean for employers, and what should they do next?
Legislation regarding cannabis
Prior to the Prince judgement, the two pieces of legislature that we used to criminalise cannabis were Section 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 140 of 1992 (Drugs Act) and Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, 101 of 1965 (Medicines Act).
The CC held that Section 4(b) of the Drugs Act, prohibits the use or possession of any dangerous dependence-producing substance or any undesirable dependence-producing substance. Section 5(b) prohibits dealing in any dangerous dependence-producing substance or any undesirable dependence-producing substance.
The conduct prohibited by Section 22A(9)(a)(i) is the use and possession of any Schedule 7 substance (an illegal substance). Cannabis was one of the substances listed is Schedule 7. When read with Schedule 7 of Government Notice R 509 of 2003, it prohibited the acquisition, use, possession, manufacture or supply of cannabis.
The issue that the CC grappled with was whether the above-mentioned impugned provisions limited the right to privacy, if so, whether such limitation is reasonable and justifiable in an open and democratic society based on the Constitutional rights of human dignity, equality and freedom, taking into account the rigours and restrictions set by Section 36 of the Constitution (the limitation clause).
The CC held that until such time that Parliament has enacted legislation to rectify the Constitutional defect, the following crucial points shall persist for a period of 24 months (from 18 September 2018):
- An adult person may use or be in possession of cannabis in private for his or her personal consumption in private;
- The use, including smoking of cannabis in public or in the presence of children or in the presence of non-consenting adult persons, is not permitted;
- The use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted;
- The cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence.
This interim measure will fall away after the correction by Parliament of the Constitutional defects, as identified by the CC, comes into effect. However, should Parliament fail to correct the Constitutional defects within 24 months after the date on which the CC Judgement was handed down or within an extended period of suspension, the above-mentioned interim orders shall become final.
The effects of the Prince Judgement on the workplace
The CC did not effectively state what the status of this judgement or the implications thereof would be within the workplace. However, we can gauge from the limitations set by the wording “in private” or in the “presence of non-consenting” that cannabis may not be used, possessed or cultivated in the workplace because although a workplace may be private in terms of certain property rights, it is still broadly seen as a gathering of different persons and/or possibly non-consenting persons.
Therefore, a workplace ought to be regarded as a non-private place for the purpose of the implications of the use, possession or cultivation of cannabis. If we can accept that a workplace is not a private place and may include non-consenting adults, then the privileges set by the CC with regard to the use, possession and cultivation of cannabis cannot be relied on as defence by employees within the workplace.
In addition, in terms of Section 2A (1) and (2) of the General Safety Regulations listed under the Occupational Health and Safety Act, 85 of 1993 states as follows:
- An employer 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 the workplace;
- 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.
How to test for cannabis
Cannabis can be tested by means of a urine, blood, saliva or hair follicle test. Cannabis is usually detectable in bodily fluids, depending on the frequency of the usage, from approximately 1 to 90 days from the date of last use.
- In terms of urine testing, cannabis can be detected from approximately 1 to 30 days from last use.
- In terms of a blood test, cannabis can be detected in the bloodstream within seconds of usage. Cannabis can be detectable in the blood system from approximately 1 to 30 days from last use.
- In terms of saliva testing, cannabis can enter the saliva through smoking, being exposed to smoke or ingestion. Cannabis can be detected through saliva testing from approximately 1 to 30 days from last use.
- A hair follicle test assesses cannabis use from 1 to approximately 90 days from last use. Cannabis reaches the hair follicles via small blood vessels. Trace amounts of cannabis may remain in the user’s hair. Since hair grows approximately 0,5 inches per month, a 1,5-inch hair segment taken close to the scalp can provide a window of cannabis use for the approximate past 90 days from last use.
The fact that cannabis may in future be used by an employee at home or in a private setting does not necessarily mean that the employee is permitted to report for duty under the influence or with his or her ability to work impaired. The employee is still required to adhere to the employer’s workplace policies and procedures.
One of the challenges that employers will face with employees using cannabis is the intricacies around proving that an employee was under the influence whilst at work or that the employee’s ability to work was impaired.
SERR Synergy understands the challenges, difficulty and frustrations that employers may encounter when attempting to test for cannabis due to the recent CC Judgement. We assist employers to develop and implement employment contractual clauses and workplace policies to allow for the testing of cannabis using various methods. Further, we can assist employers to demarcate their workplace as a public domain and not a private area for purposes of negating and/or limiting the force and effect of the CC Judgement.
About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a post-graduate Diploma in Industrial Relations and a post-graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds post-graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.