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Dealing with marijuana use in the workplace

By Farhaan Lorgat, IR Team Leader, LabourNet Eastern Cape - Dec 11, 2018
Dealing with marijuana use in the workplace

On the 18th of September 2018 the Constitutional Court decriminalized the use of marijuana as well as the cultivation of marijuana in private.

The court ruled that sections of the Drugs and Drug Trafficking Act 140 of 1992 in conjunction with the Medicines and Related Substances Control Act 101 of 1965 contravened section 14 of the constitution which relates to the right of privacy.

What does the marijuana ruling mean for employers?

Although the use and cultivation of marijuana in private has been legalized, employers still have a legal duty to provide a healthy and safe working environment as stipulated by section 14 of the Occupational Health and Safety Act NO.85 of 1993.

It also states within the General Safety Regulation 2A (intoxication)

(1) “subject to the provisions of sub regulation (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 sub regulation (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 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”.

The challenge employers are likely to face is that of finding the employee under the influence of marijuana.

Unlike a breathalyzer test that gives an alcohol reading which gives an accurate view of the probable physical and mental impairment of the employee based on the blood alcohol concentration, a test for marijuana is unlikely going to determine the degree of impairment and thus the employer would need to rely upon visual cues such dilated pupils, erratic behaviour, incoherence, unsteady balance, severe paranoia, hallucination etc. in order to ascertain whether or not the employee is under the influence of marijuana.

Another challenge an employer faces is that the effects of smoking marijuana fades away quickly, however the upside is that the drug can be detected within the body for a period of weeks if not longer depending on the usage.

A saliva test measuring to at least 25ng/ml may be used to determine whether an employee is still under the influence of marijuana.

The saliva test will reflect a positive result in cases where the substance was consumed within the past 2 to 6 hours. If the time period mentioned is missed, the employer would need to rely on either a urine test or a hair sample test.

Below is a visual reference of marijuana detection times:

Procedure to be followed when an employee is suspected to be 'high' from marijuana 

Should the company suspect the employee of being under the influence of marijuana, the following guidelines should be followed. It is very important that the employee is not sent home before the below exercise has been completed:

  • It is the responsibility of the staff member in charge of the shift to assist with the intoxication procedure and to inform the manager of the department who should be present whenever possible.
  • Make use of one or two witnesses, who would be able to motivate why they believe the employee is under the influence, to assist in judging the employee’s condition. An observation checklist is critical when making note of the employee’s condition.          

Once an employee is determined to be under the influence of marijuana, the following procedure is to be followed:

  • The employee is to be sent home without pay, as the employee is unable to fulfil his/her duties in terms of the employment contract. Instruct the employee to return to work the following day, thereafter follow the necessary disciplinary process by issuing the employee with a written notice to attend an inquiry.

If an employee has a marijuana addiction

Although a company has the authority to adopt a zero tolerance approach to marijuana. An employee that approaches the company prior to being “caught” and informs the company of his/her addiction problem with the use of marijuana, would then be dealt with in terms of an incapacity inquiry in which a decision will be made in respect of the assistance the employee will receive.

However, this process does not absolve the employee from being terminated due to his/her incapacity should he/she continue to use marijuana.

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