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    Ivan Israelstam

    The Constitutional Court has ruled that the law prohibiting the use of cannabis in certain circumstances infringes people’s rights to privacy. How does this ruling affect the right of employees to use cannabis at work and to be under the influence of cannabis at the workplace?

    Patrick Deale

    In Private
    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.

    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 and urine 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 for 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.

    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.

    Michael Bagraim


    With the advent of the recent Constitutional Court judgment and the increased use of cannabis we are finding many employers being faced with employees who feel that they may now partake in cannabis as it is “legal”. It must be known the Occupational Health and Safety Act specifically says that no employer may allow any person to enter or remain in the workplace if they appear to be under the influence of liquor or drugs or to be in possession or partake or offer other persons intoxicating liquor or drugs. This injunction is incredibly far reaching and is in no way negated or changed by the court ruling. Each and every employee must be made aware that being under the influence of marijuana at work could lead to accidents and if detected will lead to disciplinary enquiries which will probably lead to dismissal. More often than not, the effects of dagga remain in the system longer than alcohol and do in fact impair the individual user. The danger that does exist at the workplace is vastly exacerbated when someone has been using dagga. We also often see that dagga is smoked together with other drugs which makes it a lot more dangerous at the workplace. Cannabis is classified as a hallucinogen which does often translate into a depressant for the central nervous system. Dagga can affect performance and safety and for all intense and purposes is dangerous when a person has to use machinery or is expected to drive. Most results show us that dagga does affect motor coordination and reaction time.

    Just because the smoking and partaking in the ingestion of cannabis is now legal it does not make it legal at the workplace. Depending on the amount of dagga taken the effects could last anything up to twelve hours especially if ingested and not smoked.

    Employers need to ensure that they have policies in place carefully outlining the negativity of alcohol and drugs and these policies should outline the disciplinary action that will be taken if the presence of the drug is detected. These workplace policies must be made known to each and every employee and it is recommended that these employees personally sign copies of the policies to indicate that they know and understand the policy and that they will abide by the rules. An employee will not be able to use the defence that the dagga is now legal. Alcohol, being legal, does not excuse any employee of arriving at work and being intoxicated. Even the possession of dagga at work should lead to a disciplinary enquiry. It is well known that after alcohol dagga is probably the most abused substance in South Africa.

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