South Africa's decriminalisation of cannabis use and possession is a sign that local legislation is catching up to other parts of the world but what does it mean for employers?
The decriminalisation of cannabis in South Africa, driven by the recent ruling by the Constitutional court that it is not a criminal offence for an adult citizen to use, possess or grow cannabis in private for personal consumption, follows a growing trend after countries like Canada, Uruguay and Thailand did the same.
But does this ruling mean the door has been opened for employees to start going to work high? According to Nicol Myburgh, head of the HR business unit at CRS Technologies, the workplace is not considered private property. Therefore, consuming cannabis there falls outside of the gamut of the ruling. He stresses that “People generally understand that consuming any mind or mood-altering substances while at the job is not allowed. Common sense in regard to cannabis should also prevail.”
This relaxation of laws has ushered in a new era and he says that employers need to proactively adjust their substance control policies and explicitly outline the rules around the use of cannabis.
The policy changes need to be as comprehensive as possible and include context. Nicol explains, “The changes should consider the nature of the business, the employee’s role and responsibilities, compliance of testing for cannabis in line with Section 7 of the Employment Equity Act, and action commensurate with the level of impairment to the employee’s ability. An important step is to take the policy further than paper by educating the workforce on what exactly the new law means, what the company’s position is, set acceptable limits and state these explicitly. Policies should also state that a person suspected of using cannabis can be approached and questioned accordingly.”
Nicol emphasises that companies need to initiate the conversation, arguing that “organisations should clearly outline their position on the use of cannabis and communicate what the consequences of coming to work high are and what steps they may take to determine if any work is affected by the use of cannabis.”
NCT Durban Wood Chips case
There haven’t been many cases brought forward by employers or employees, but Jose Jorge, director in the employment practice at Cliffe Dekker Hoffmeyr points to the recent case, Mthembu and others v NCT Durban Wood Chips as a precursor to the type of issue employers may have to increasingly grapple with.
In this case, a company in the wood and chip industry dismissed several employees for being under the influence of an intoxicating substance after testing positive for cannabis during working hours. The applicants were found guilty under the charge of being “under the influence of intoxicating substance whilst on duty” and were subsequently dismissed. The applicants challenged the fairness of their dismissal at the CCMA.
The commissioner held that similar to instances where alcohol is involved, an employer is entitled to discipline employees who use cannabis or are under its influence during working hours, where there is an indication that the consumption of cannabis could impair the employee’s ability to work to the standard and care reasonably required by an employer.
The employer’s zero-tolerance approach to substance abuse was aligned with the high degree of danger posed at the workplace in which heavy machinery and dangerous equipment were being operated. In this case, the Commissioner determined that it would be reasonable for the employer to expect its employees not to be under the influence of cannabis when reporting for duty because of the inherently dangerous working environment. The employees’ dismissals were thus found to be fair.
Does weed impair performance?
According to a study by America’s National Institute of Drug Abuse, employees who tested positive for marijuana on a pre-employment urine drug test had 55 percent more industrial accidents, 85 percent more injuries, and 75 percent greater absenteeism compared with those who tested negative for marijuana use.
Given the dangers, if an employee is found to be under the influence of cannabis, do they stand to be summarily dismissed? According to Nicol, this depends on the implications of working while impaired. For instance where employees are operating in an environment where they could be a danger to themselves and others, possibly facing more serious consequences. “However, if the employee does not put anyone or the company at risk, then perhaps a warning or disciplinary action should suffice. If it is determined that there may be something deeper at play, such as an issue with addiction, the employer may be obliged to help them overcome it.”
Not so cut-and-dry in an office environment
Dr Richard Malkin, managing director of Workforce Healthcare, says that an employer suspecting an employee of showing up at work after using cannabis is a sensitive situation. “The steps an employer should take if they suspect an employee will be motivated by the level of risk in the situation.”
In a low-risk environment, such as an ordinary office setting where no machinery is being operated or dangerous substances are in use, the employee should be approached in a non-threatening, dignified manner. “If there are strong grounds, such as the employee behaving out of the norm, the person should be called into a meeting with a senior manager plus a witness.
“First, HR should inform the employee that there is a concern, that as per policy they are being referred to the employee assistance programme. The intention of the programme is to provide support and assistance to employees with problems of addiction, not confrontational.”
In a high-risk situation, a more urgent approach is required as lives can be at stake. Richard states that it is important the employer is mindful of the responsibility to protect other employees or the public as per the Occupational Health and Safety Act. The suspected employee should be removed from operating the machinery or equipment counselled about being tested as per policy.
Richard points out that cannabis testing is very complex. “There isn’t a legal limit defined by law and a lot of policies are written by non-experts who don’t understand the changes to the law, nor the metabolic activity of cannabis and the impact on testing. Hence one should get a confirmation test done, which is expensive and may take 48 hours for a result.”
Cannabis testing
Cannabis testing kits are easily accessible and are not expensive for screening, however, their accuracy depends on the type of test.
Richard explains that “the urine test is not accurate, it measures the breakdown product of cannabis, this could be in the system for 10 days or more. Saliva tests are more sensitive. The active ingredient in cannabis lasts for up to four hours in the average person’s system after consumption, unlike alcohol which is dose dependant and is metabolised at the rate of one tot per hour, so if one has six tots it will be in the system for six hours, active cannabis is gone in four hours. Secondly, a breathalyser only tests the active ingredient in alcohol.”
Cannabis breathalyser testing equipment is in the final phases of testing in the USA and Canada and should be available later this year, which will enable a legally admissible rapid non-invasive test that will solve this problem.
The results are legally admissible only if a confirmation test is conducted, Richard says. “I also believe there is a strong case for legal admissibility for saliva testing. Again, the policy must be well written and based on facts, as a poor policy and procedure can ruin the legal process.”
Impact of flexible working
As the popularity of more flexible models of working, such as freelancing and remote work, continue to grow, how does the application of rules related to cannabis apply? According to Jose, the same principles applied to onsite work apply when working remotely. “However in these cases, since the employer is not able to physically interact with the employee, then the issue of substance abuse may arise because the output is not up to the required standard. Alarm bells can start to go off if the quality of work produced is declining, the speed of delivery is disappointing, deadlines are being missed and overall productivity is compromised.” If objectively determinable deliverables are not being met, then the employer has the right to investigate.
Fans of cannabis have claimed that it frees their imagination, and Apple founder Steve Jobs was once quoted as saying that “marijuana and hashish…make me relaxed and creative.” But this assertion stands unproven. Richard says he is not aware that cannabis necessarily improves creativity, but points out that even if it does, the complications may outweigh the benefits.
Looking ahead, Richard believes that cannabis is potentially a huge problem in the workplace and on the roads as the relevant legislation is not completed and “there is no legal limit defined for driving under the influence. I am also concerned about the micro or domestic impact on our country, as well as how it manifests on the macro level.”
This view is valid because now that the door has been opened, proponents have started to push for even more leniency. The South African market for cannabis and associated products could be worth R27 billion per year by 2023 according to a report by Prohibition Partners. The 2019 Cannabis Expo gathered delegates ready to explore its medicinal, agricultural, financial and lifestyle aspects, demonstrating the herb’s vast commercial potential. Recently, Minister of Finance Tito Mboweni ruminated on the possible tax revenue that could be generated by fully legalising cannabis.
If the government was to pursue this avenue, the workplace and broader society would be forced to quickly create clarity around parameters and the potential wider impact.
