WEED AT WORK: What should employers do about cannabis in the workplace?

WEED AT WORK: What should employers do about cannabis in the workplace?

Employers may be wondering what to do about employees who want to exercise their newly acquired rights as adults to –

“…use or cultivate or possess cannabis in private for his her personal consumption”.

Constitutional Court

The Con-Court has thus declared that it’s perfectly legal to “consume” cannabis – and presumably in its various forms. But it stopped short of permitting a free for all use anywhere with anyone you like. It has instead attempted to limit the places where you can use by saying you can use it –

“…in private and not in public

High Court

The High Court in the Western Cape had previously legalised use but only in private “in a home or private dwelling.” But the Con-Court found there was no persuasive reason for this restriction. And in Judge Zondo’s words –

“…to the extent that the impugned provisions criminalise such cultivation, possession or use of cannabis, they limit the right to privacy.”

Privacy

The key issue is the right to privacy. It’s this fundamental right in the Constitution which the Con-Court based its judgement on. “Privacy” refers to the privacy of the “person” as an individual. It doesn’t refer to a place like a public park or to particular context like a private wedding where the individual happens to be.

Limitation

But the caveat to the constitutional right to privacy is that it’s not unlimited. It can be limited to the extent that it’s outweighed by the public interest. Both courts imposed limitations. The High Court’s decision sought to balance known considerations of public interest concerning dagga use (issues of morality and religious beliefs, risks to health and safety, addiction etc.) by ring-fencing use to a private home. The Con-Court also limited the right but not as much by scrapping the “private home” ring-fence and limiting use to “…in private”.

Regulations

So what exactly does “…in private” mean? For now, the jury’s open – literally. The Con-Court  said Parliament must come up with regulations to implement its decision within 24 months. In the meantime, the police will have a discretion to decide when use is “in private” in each case when they “catch” someone using dagga. Not a very comforting thought!

The upshot is that the Con-Court has opened up a whole range of other possible places or circumstances where it could be legal to consume cannabis. Would it include the workplace?

In Private

Yes – conceivably it could include the workplace. An employee would be protected if he is found at work with a small quantity of cannabis in his pocket for personal use – because it would qualify to be “in private”. More so if the employee found a private spot out of sight from other employees and on the employer’s private property to smoke a joint…in private.

Policies

However, an employer also has rights – and they have a public interest character to them. They include the interests of other employees, risks to safety, productivity etc.

And there are existing examples of how employers already limit individual rights in the workplace environment. Bans on guns or the use or possession of alcohol and drugs, including dagga in the workplace are already well accepted limitations on the rights to use them elsewhere. There’s no reason why the Con-Court judgement changes the legitimacy of such a policy just because it has added cannabis to the range of things an employee can do outside the workplace but not in it.

Effects and Testing

What about an employee who comes to work after using cannabis in private before or outside the workplace?  How do you test if he or she is “stoned”at work? Employers already use biological blood tests to assess if an employee has consumed alcohol or drugs. Medical evidence shows that alcohol stays in the blood stream for about 24 hours and cannabis stays for much longer – for about 21 says. And employers have practical physical tests to easily assess if an employee is “under the influence” of alcohol or other “intoxicating substances” – bloodshot eyes, slurred speech, unstable etc.  But it’s not so easy to assess if an employee who tests positive for using cannabis is “under the influence”. This calls a scientifically validated test to assess if an employee is stoned at work and thus liable for disciplinary action. Hopefully a generic test will emerge from the pending regulations.  

TIP:  An employer will still be entitled to apply its existing policies and rules, including tests, which prohibit and detect the use and possession of substances such as cannabis at the workplace. If an employer does not have an existing policy, it would be prudent to formulate one in consultation with employees so there’s no uncertainty. In the absence of a clear rule, employees may test the boundaries of their new found rights by lighting up at work.

 

September 2018

 

PATRICK DEALE

labour lawyer & mediator

 Tel:        0833758771

Email:   patrick@deale.co.za