While cannabis is regulated heavily in South Africa, the dos and don’ts of its use in public or even at the workplace has become increasingly unclear.

In 2018, case law effectively legalised the private cultivation, use and possession of cannabis for private purposes, by adults, in private places, for personal consumption, said employment law experts at Cliffe Dekker Hofmeyr.

Since the finding, the legislative framework has remained uncertain as the finalisation of the Cannabis for Private Purposes Bill that intends to regulate private consumption remains delayed, said Cliffe Dekker Hofmeyr.

The general position is that it remains illegal to buy and sell cannabis products except under a license granted by the South African Health Products Regulatory Authority (SAHPRA) under the Medicines Act.

The Act enables patients to purchase and use unregistered medical cannabis products for legitimate, therapeutic purposes through an application made to the South African Health Products Regulatory Authority.

Accordingly, cannabis is legally capable of being acquired and consumed for medical reasons and cultivated and consumed in private by adult persons for any other reason.

This has left many employers wondering how to treat cannabis use by employees in light of the health and safety Acts and other relevant legislation that often advocate for a ‘zero-tolerance’ approach towards substance abuse.

Using cannabis while at work

In  Moodley and Clover SA (Pty) Ltd (2019), the CCMA found that an employee who consumed cannabis while at work may be dismissed.

This was due to the employer’s zero-tolerance policy towards employees being under the influence of drugs or alcohol at the workplace. The employee’s job required him to go onto a site and operate large machinery, said Cliffe Dekker Hofmeyr.

Moodley, who had a history of cannabis use, had allegedly been smoking cannabis at work while in a company vehicle and tested positive under a urine test. Witnesses had also testified to the smell that emanated from the vehicle and the employee’s behaviour upon emerging from the vehicle.

Cliffe Dekker Hofmeyr noted that when it comes to testing for cannabis, the position becomes less clear as available testing methods for the presence of cannabis often do not distinguish between immediate use and use, which occurs well outside of working hours.

The employment law experts added that the Protection of Personal Information Act (POPIA) applies when a request for employees to disclose information regarding their health is made.

“Therefore, an employee’s consent may be mandatory, and it is debatable whether an employer may rely completely on a contract of employment as a basis upon which to process especially protected information.”

Cliffe Dekker Hofmeyr said that, unlike alcohol, cannabis may remain present in an individual’s system for several days or weeks after usage and can be present for months in chronic users, even though it might not affect individual work performance.

The question then becomes, can an employer dismiss an employee for consuming cannabis outside of work, for medical reasons or otherwise?

Cannabis use outside of work

In Enever V Barloworld Equipment, A Division of Barloworld South Africa (Pty), the Labour Court dealt with this question in the context of an employer with a zero-tolerance alcohol and substance abuse policy.

Enever was employed as a category analyst, a typical office position which did not constitute a safety-sensitive job in that she did not have to operate heavy machinery or drive any of the respondent’s vehicles, said Cliffe Dekker Hofmeyr.

Enever was requested to do a urine test, which returned positive for cannabis. On the same day, she was informed that she was unfit to work and was requested to leave the premises.

At the time of undergoing the urine test, Enever was:

• Not impaired or suspected of being impaired in the performance of her duties

• Not performing any duties that cannabis would be a risk to her or her      colleague’s safety.

• Not in possession or suspected of being in possession of cannabis while at work.

Despite this, she was dismissed on account of repetitively testing positive for cannabis and accordingly being in breach of the respondent’s alcohol and substance abuse policy.

She claimed that her dismissal was automatically unfair and that the respondent’s policy discriminated against her on arbitrary grounds.

Enever alleged that she suffered from migraines, anxiety and trouble sleeping. She said she had tried several prescribed pharmaceutical drugs; however, cannabis oil and smoked cannabis was the alternative she moved to.

She also alleged it improved her bodily health, outlook and spirituality. She testified that smoking cannabis made her feel closer to God, which also assisted in her quest to address internal struggles.

The court held that her evidence regarding her medical condition was unsubstantiated, said Cliffe Dekker Hofmeyr.

The importance of employers’ policies

The Labour Court held that everyone is entitled to use cannabis in their own space for recreational purposes, but this does not mean the respondent would have to cognisance that the consumption was in the employee’s private time or space should they test positive.

In Enever’s case, the employer argued that owing to the highly dangerous operations on its premises; it had a zero-tolerance approach to working under the influence of alcohol or drugs.

“While cannabis is legally capable of being consumed in private, employees can still be dismissed for misconduct if it is in contravention of their employer’s generally binding rules in the form of an alcohol and substance abuse policy or otherwise,” said Cliffe Dekker Hofmeyr.

If an employee has legitimate medical reasons, they should engage with their employer, produce evidence that substantiates their condition and determine if the use of cannabis would oppose the employer’s operational constraints or policies.

It is recommended that employers review their substance abuse policies to align with the evolving regulatory environment applicable to cannabis use, especially considering the provisions of the Draft Cannabis for Private Purposes Bill.

• Commentary      by  Imraan Mahomed, Shaad Vayej and Tiffany Alves,      employment experts at Cliffe Dekker Hofmeyr.