The legalisation of cannabis for private use in South Africa has left many employers with a hazy understanding of their rights and obligations regarding employee cannabis use. Here at Labour Law with Luzan, we’re here to shed some light on this complex issue.
The Current Landscape:
The 2018 Constitutional Court case decriminalised the private use of cannabis, but it didn’t extend those rights to the workplace. Employers have a legal duty to provide a safe working environment under the Occupational Health and Safety Act (OHSA). This means they can still enforce policies prohibiting employees from being under the influence of cannabis at work, even if consumed legally outside work hours.
Recent Cases Offer (Some) Clarity:
The Labour Court’s 2023 “Marasi v PetroSA” case confirmed employers’ right to implement drug and alcohol policies. Here, an employee using cannabis for religious purposes was denied access to the workplace due to exceeding the company’s THC threshold. The court upheld the employer’s actions, highlighting the employer’s responsibility for workplace safety.
Challenges Remain:
- Impairment vs. Detection: Cannabis can stay detectable in the system for weeks, long after impairment has subsided. This makes it difficult to determine if an employee is currently under the influence.
- Medical Use: Employees using cannabis for medicinal purposes present a unique situation. While the law protects employees’ right to privacy regarding their medical conditions, employers need to balance this with workplace safety concerns.
Luzan’s Recommendations:
- Develop Clear Policies: A well-defined drug and alcohol policy outlining expectations and consequences is crucial.
- Focus on Impairment: Policies should target employee impairment, not just cannabis detection. Include observable signs of intoxication and potential disciplinary actions.
- Seek Legal Guidance: Navigating the legalities of cannabis in the workplace requires expert advice. Our team at Luzan Labour Law can help you craft clear policies and ensure compliance with current regulations.
The Bottom Line:
The legal situation surrounding cannabis in the workplace remains unsettled. However, employers can take proactive steps to protect their interests. By implementing clear policies and seeking legal guidance, you can ensure a safe and productive work environment for everyone.
Stay Informed:
Cannabis legislation is constantly evolving. We recommend subscribing to reputable labour law publications for ongoing updates. Additionally, feel free to contact Labour Law with Luzan with any specific questions you may have.
Together, we can navigate the complexities of cannabis in the South African workplace.
