With the imminent relaxation of the use and cultivation of dagga, it is important for management to carefully look at their workplace policies.
Workplace policies need to be very robust, given that both employers and employees are tasked with creating a safe workplace.
South Africa seems to be following the trend in the United States to legalise cannabis. Last year, Judge Dennis Davis ruled in a full bench decision of the Western Cape High Court, that the use and cultivation of cannabis by an adult in a private home is constitutionally legal.
This decision still needs to be confirmed by the Constitutional Court before taking effect.
An employer is held personally responsible if the workplace is not safe and employees can be prosecuted if they don’t comply.
In fact, every employer has a duty to stop employees from entering or remaining at work if they appear to be under the influence of intoxicating liquor or drugs. Depending on a company’s policy, an employee who arrives at work stoned or impaired, and who poses a safety risk, could be fired or arrested. The problem is that dagga for instance can show up in the bloodstream up to a week later – it could become legal at home and not in the workplace and then what does a company do?.
The term safety is used broadly and may involve physical safety or even reputational safety.
A stoned employee in the call centre, an equities trader or a crane operator may all pose safety risks for different reasons.
Certain industries tend to turn a blind eye to substance use when it is perceived to make employees more productive.
Pro-dagga groups advocate that employees should not consent to drug testing unless their employment contract specifically covers drug testing or the company has a comprehensive occupational health policy in place.
So a policy is critical. Before you perform drug and alcohol tests, you need to gain written consent from your employees. We need to have a source for reference. To do this, you need an occupational health and safety policy in place, which is set out in the employment contract. The employee’s signature on his employment contract should include consent for drug testing.
Testing for dagga use is particularly difficult. First the employee is asked whether he/she is taking any substances. Then a screening test is done using saliva or urine. If the test indicates dagga use, it needs to be sent to a lab for confirmation. The testing is further complicated as the test seeks the break down product of cannabis and not the presence of the substance itself.
Given that South Africa is one of the world’s largest producers of dagga and SA has some of the most lax dagga laws in the world, according to Wikipedia, it is recommended that there is a clear policy on dagga.
In the workplace, it all boils down to your substance abuse policy.
An employee could for instance take a Valium or cough mixture, both legal substances, and be at the office in no condition to work or to operate machinery. I advise companies to use experts to help formulate their company policy and avoid the minefield of complications around substance abuse in the workplace. We have helped several organisations prepare policies and we are able to do the necessary random periodic testing countrywide.
Another issue which has an unintended consequence, could be if a person consumes cannabis at home and the person drives a vehicle whilst stoned, the person cannot be successfully prosecuted as there is no current legislation that defines an acceptable level of cannabis in the body whilst driving.
Legislation needs to be amended that defines an acceptable level of cannabis in the body to drive just like alcohol which is clearly defined. I am of the opinion that until legislation is amended, there is a risk that South Africans are exposed on the roads with seemingly no consequence to the perpetrator.