Businesses in South Africa need to update their policies

 ·23 Jun 2024

Employers should proactively update policies to accommodate legal cannabis use, ensuring compliance and workplace safety, thereby averting disputes arising from outdated rules.

This is outlined by legal experts at Webber Wentzel, Lizle Louw and Amy King, who say that misconceptions about where, when, and among whom cannabis can be used are rife.

Following the 2018 Constitutional Court decision that decriminalized the private use of cannabis by adults, there has been considerable confusion, particularly within workplace contexts, regarding the acceptable circumstances for its consumption.

While the 2018 Prince judgment saw the Constitutional Court decriminalise the private use of cannabis by adults in South Africa, which led to increased private cannabis use.

However, “during the years that followed, there has been an increase in unfair dismissal and unfair discrimination cases related to cannabis use,” said Louw and King.

Now, the recently published Cannabis for Private Purposes Act, 2024 may exacerbate this.

The Act will formalise a statutory framework for the private use, possession and cultivation of cannabis by adults.

“With the enactment of the Cannabis Act, it is crucial to reassess workplace policies that regulate cannabis use, keeping the lessons learnt in the Labour Court front of mind,” said the legal experts.

Key provisions of the Cannabis Act

Louw and King outline various key provisions of the new Act, including:

  • Private use and possession: Adults are allowed to use and cultivate cannabis in private places, which include homes and private communal lands, but cannabis must be concealed from public view. The use of cannabis in a private place in the presence of non-consenting adults or children is however illegal.

  • Public restrictions: While adults may possess limited quantities of cannabis in public, its use remains strictly prohibited in public places.

  • Dealing in cannabis: Selling or distributing cannabis remains illegal, with severe penalties, including imprisonment of up to 10 years.

  • Exceeding legal limits: Possession or cultivation of cannabis beyond the prescribed amounts is prohibited and can lead to fines or imprisonment of up to five years.

  • Transportation: The Cannabis Act governs the transportation of cannabis, including prohibiting its use in vehicles on public roads and possession of cannabis beyond legal limits while being a passenger.

  • Expungement of criminal records: Individuals with previous convictions for possession or use of cannabis under old laws can have their criminal records expunged automatically. Those with convictions associated with having been presumed to deal in cannabis by virtue of their possession of the substance will need to apply to have such convictions expunged.

What this means for the workplace

“The altered classification of cannabis use from illegal to legal in defined circumstances does not mean that employees may report for duty under the influence of cannabis, to the extent that they cannot work safely or productively,” said Louw and King.

“Whether cannabis use forms part of health, spiritual, or recreational practices, it does not circumvent the application of workplace policies that ensure safety and productivity,” they added.

This is because the Cannabis Act does not alter an employer’s obligation to maintain a safe working environment, as set in legislation like the Occupational Health and Safety Act.

“Employers should update substance abuse policies to treat cannabis more like alcohol and less like illicit substances to avoid finding their efforts to address the effects of cannabis use in the workplace thwarted,” said the legal experts.

However, tests need to differentiate between the two, especially in how long they stay in the system.

“A drug test that indicates the presence of cannabis in the system that may have been consumed seven days ago cannot be said to be rationally linked to operational needs if it does not indicate that the employee is incapable of working safely,” said the legal experts.

Recent Labour Court judgements have expressed that zero-tolerance policy against the use of cannabis may (at times) infringe on an employee’s right to privacy and dignity, as a mere positive test for cannabis is not sufficient grounds to lead to a conclusion that an employee is impaired in the performance of their duties.

However, this is only given if the employee is not ‘stoned,’ intoxicated or impaired during work hours, on the premises, or if the employee was an employee who operates or works with heavy and dangerous machinery.

Louw and King outlined that workplaces that incorporate the use of heavy machinery, driving of vehicles, or otherwise dangerous environments may nevertheless remain justified in adopting a zero-tolerance approach to substance use.

A substance use policy that is fully intolerant of cannabis consumption was recently scrutinised in another case.

The court found that the extent to which a workplace policy might interfere with an employee’s personal choice to consume cannabis in private and outside of working hours will depend on, amongst other factors:

  • The nature of the employee’s role;
  • The nature of the workplace; and
  • The statutory requirements for safety that apply to the specific workplace.

“There must be a rational and proportionate connection between the policy, the employer’s operational needs and safety obligations,” said the experts.

Louw and King suggest that employers and medical professionals assess the necessity of a zero-tolerance cannabis policy and the suitability of testing methods, or alternatively, establish an acceptable cannabis level using initial screenings like saliva tests, followed by impairment assessments.

Read: Government leaves cannabis farmers high and dry in South Africa

Show comments
Subscribe to our daily newsletter