Cannabis in the Workplace
The recent Constitutional Court decision (Minister of Justice & Others v Prince & Others) [2018] decriminalizing the cultivation, possession and use of dagga for private purposes might be good news for civil libertarians (not to mention users), but we are predicting the ruling will pose new challenges for employers and their efforts to ensure a workplace free of employees operating under the influence of intoxicating substances.
The New Laws
The Constitutional Court decision now means that adults are permitted to use, possess and cultivate cannabis, in private, and for personal consumption only. Logically, “in private” means that using cannabis in a public place, such as a workplace, is not legal.
Health & Safety
Existing health and safety regulations, namely the General Safety Regulations (“GSR”) 1031 of 1986, forbids the use of intoxicating liquor at the workplace and states:
2A (1) Subject to the provisions of subregulation (3), an employer or a user, as the case may be, 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 a workplace.
(2) Subject to the provisions of subregulation (3), 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.
(3) An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.
In our view, GSR(2A( remains a valid, lawful obligation placed on employers and now, more than ever, employees should be reminded of their responsibility not to attend work under the influence of intoxicating drugs nor be in possession of any such drugs in the workplace.
Next Steps
The Constitutional Court’s decision necessitates a review of an employer’s Drug & Alcohol Policy, Disciplinary Code and Incapacity Policy. Given that some employees are likely to (mistakenly) rely on the Constitutional Court’s decision to explain or defend allegations of misconduct related to intoxicating drugs, employers must remind employees that use, possession or cultivation at the workplace is still not acceptable and can lead to dismissal.
The thorny issue of proof of intoxication, and associated principles about testing for cannabis, should also be addressed, and a clear process outlined for first and subsequent policy breaches.
For assistance with Drug & Alcohol Policy and other workplace policies, or with dealing with employee intoxications issues, kindly contact Workplace Strategies at info@workplacestrategies.co.za.