Legal cannabis: what to do when someone comes to work stoned

09 October 2019 | Web Article Number: ME201916596

Occupational Health
Safety
Security

EVEN though the use of cannabis in the home is now legal, the potential exists for employees to arrive at work under the influence. Most company policies cater for the use of illegal substances while at work, but these need to be updated to reflect the new regulations.

That’s according to Nicol Myburgh, Head of the HR Business Unit at CRS Technologies, who said studies had shown that cannabis can affect an employee’s occupational capacity in various ways. This includes performing tasks more slowly, performing poorly when handling routine, monotonous tasks, and difficulty in multi-tasking, taking instructions from superiors, making crucial decisions and operating machinery and/or motor vehicles.

“This means that, as with alcohol usage, companies can legally prohibit employees from taking cannabis in the workplace. After all, it’s their company and they control the rules. It is therefore important to include these restrictions in a policy, employment contracts, or even enforce it as a standard rule,” he said.

“Even if a business does not have a policy explicitly prohibiting this, action can still be taken against someone who smokes cannabis at the office, because common sense dictates it is not acceptable behaviour.”

Taking the test

What happens if an employee uses cannabis at their private residence and arrives at the office under the influence?

“From a policy perspective, there is no difference between taking cannabis and drinking at home. Consequently, the approach is the same as if the employee arrived at work under the influence. Of course, the challenge lies in proving that the employee is under the influence of cannabis while at work. Fortunately, there are various tests available that can detect the substance for months after use, and a saliva test can identify cannabis in the system for up to 24 hours.”

Myburgh said, however, that even if a saliva test shows positive for cannabis, this does not necessarily mean that the employee is unable to work. “The test has merely proved that the employee used cannabis in the last 24 hours, which in itself is not an offence. The employee is only guilty if it can be proven that he or she is under the influence of cannabis.”

And while alcohol has a legal limit associated with its use, a saliva test for cannabis does not measure the extent to which the substance affects a person.

Legal route

“Criminal law dictates that a crime must be proven beyond reasonable doubt, but labour legislation relies on the balance of probabilities,” Myburgh said.

For example, if an employee arrives at work showing clear symptoms of being under the influence of cannabis, and a saliva test proves usage over the last 24 hours, based on the balance of probabilities, the chain of events will in all likelihood lead to a guilty verdict and the employee could be dismissed.

Changing environment

Medical testing of employees remains regulated by Schedule 7 of the Employment Equity Act, which states: “Medical testing of employees is permitted if it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits and inherent requirements of the job.”

It could be argued that it is an inherent job requirement to not be under the influence of any mind-altering substance, making the case for cannabis testing.

“A company could therefore legally require employees to undergo a test that could potentially strengthen its position in a disciplinary hearing, but this does not necessarily mean the company will be able to dismiss the employee, even if he or she tests positive. It all depends on the accompanying symptoms,” Myburgh said.

Workplace policies should explicitly state the repercussions for arriving at the work under the influence, whether this is from alcohol usage, cannabis, or any other mind-altering substance.

“Considering that cannabis is no longer an illegal drug, company policies must be adapted to encompass employees being under the influence of mind-altering substances. Alternatively, the alcohol usage policy should be expanded to include cannabis,” Myburgh said.

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