Tag: weed

By Lizle Louw and Shane Johnson for  Webber Wentzel

Following the Constitutional Court’s Prince judgment, cannabis use, possession and cultivation in South Africa has been decriminalised with adult persons now permitted to use, possess and cultivate cannabis in a private place for personal consumption.

Given that Prince does not deal with the effects of the decriminalisation of cannabis in the workplace, many unanswered employment related questions emerge which we set out below.

What can be said, at this stage is that Prince does not affect an employer’s obligation to maintain a safe working environment for all of its employees, which includes prohibiting employees who are “intoxicated” from entering the workplace, and policies and testing applicable to alcohol use in the workplace are not likely to be appropriate in dealing with cannabis use.

Cannabis in the workplace
In terms of Prince, the use, possession and/or cultivation of cannabis by adults is permitted “in private”. Although cannabis use, possession and cultivation is not confined to one’s “home” or a “private dwelling”, it is likely to be difficult for an employee to argue that the workplace is a “private” space, especially given that the use of cannabis in public or in the presence of non-consenting adult persons is not permitted.

The more difficult issue is where employees use cannabis in private, outside of the workplace, and thereafter report for duty. Cannabis can affect an employee’s occupational capacity in various ways, including performing tasks more slowly, performing poorly when handling routine, monotonous tasks, difficulty in multi-tasking, difficulty in taking instructions from superiors, difficulty in making crucial decisions (especially in high risk situations), difficulty in operating machinery and/or motor vehicles. It is these consequences that an employer will have to consider when the employee reports for work and test positive for cannabis use.

The above scenario may not seem very different to employees using alcohol in private and then reporting for work. The difference, however, between alcohol and cannabis in relation to workplace policy is that for as long as alcohol is detected in the human body, it results in impairment; Cannabis may be detected in the human body for months after use, which at that time may no longer cause impairment.

Testing of employees for cannabis
Medical testing of employees remains regulated by section 7 of the Employment Equity Act (EEA). 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 or the inherent requirements of a job. An employer who wishes to test an employee for cannabis may be able to justify such testing relying on the provisions of the EEA. A number of tests (some of which are not available in South Africa at present) are used to test for cannabis: breath, blood, oral fluid (saliva), urine, sweat and hair.

Saliva tests will show cannabis use in the past 24 hours (which could be an indication that the employee is still impaired) but hair testing will show cannabis use for up to months after use (which could mean that the employee is no longer impaired). It will not necessarily be the actual testing that will be problematic, but what one does with the test results.

Workplace policies and procedures
Most employers enforce a zero tolerance approach to the use of any drugs and/or alcohol in the workplace. Prior to Prince it was relatively easy to deal with cannabis at work as cannabis use, possession and cultivation was a criminal offence. Following Prince, and given that traces of cannabis may remain in the body for months after use (which does not automatically result in impairment) employers may need to regulate cannabis as a separate issue and by implication through a separate policy and procedure. Zero tolerance policies may not be justifiable.
Employers and their occupational medical practitioners should consider the safety requirements at the workplace and determine whether a zero tolerance approach is justifiable or whether there is an acceptable limit of cannabis trace after some time of use. This may include conducting a screening test (such as a saliva test) that will show immediate past use and then conducting further tests to establish the level of impairment.

Source: Fin24

A landmark court ruling by the Constitutional Court that decriminalised the private and personal use of cannabis could leave employers in a pickle when it comes to health and safety in the workplace, experts have said.
This is because it may be difficult to determine for certain whether an employee is under the influence of cannabis or not when they come to work, which could have implications – particularly for employees performing potentially hazardous work.

The Occupational Health and Safety Act states that no person who is or appears to be intoxicated may enter or remain at a workplace. They may also not have in their possession, partake of, or offer any other person intoxicating liquor or drugs, it adds.

The exception is medicine in any form such as CBD Gummies, Vape or Liquid consumption, where the employer may only allow them to perform their duties if the side effects are not a threat to anybody’s health or safety.

Why it’s hard to test for cannabis
Gerhard Roets, Construction Health & Safety Manager at the Master Builders Association North, says the cannabis ruling left the construction industry scratching heads over how to ensure employee safety.
“In practical terms, the issue for employers is how to determine whether workers are under the influence of cannabis or not when they come to work.”

This is because the metabolism of cannabis is complex. Delta 9-tetrahydrocannabinol (THC) is the psychoactive substance in cannabis that provides the “high”.

Hemp oils derived from cannabis seeds are used medicinally – the health benefits are associated with the non-psychoactive cannabidol (CBD). But hemp products may contain some THC, which could also show up in drug tests. See the full review of the drug tests in order to know exactly what might or might not show up. Furthermore, a standard urine test just screens for the metabolites of cannabis, which can show up long after the psychoactive effects have worn off. There are rumors that, some experts who know how to clone weed are attempting to create a strand that, does not remain in the system for nearly as long. This would make it even more difficult to test for.

All this means is that a positive test may not reveal anything that incriminates the employee.

“One needs to understand that the Court’s ruling only decriminalises the possession, consumption and private cultivation of cannabis for private use in a private space. This means that employers remain responsible for providing and maintaining a work environment that is safe for all,” says Roets.

The Master Builders Association believes the main issue is that there is not an effective, standardised testing method available that can be used across industries.

“Until the testing issue is resolved, and the state of being ‘under the influence of cannabis’ is medically defined, employers will have to tread carefully,” says Roets.

But do you need a test?
Labour lawyer Michael Bagraim, also a DA MP and the party’s spokesperson on labour, says regardless of grey areas around testing, employers will have to rely on good old-fashioned observation for now – and employees should be aware that they don’t need a positive test in order to risk dismissal.

“Just like alcohol, cannabis intoxication is not acceptable at the workplace,” he told Fin24.

“On many occasions, and there have been many cases to this effect, the dismissal takes place after physical interpretation of intoxication. For instance, with alcohol you would notice slurred speech, bloodshot eyes, erratic behaviour and even breath smelling of alcohol. On the strength of the witness who notices this, a disciplinary inquiry is held and the individual can be dismissed.”

He says it is “slightly more difficult” with cannabis, but “you can palpably see if someone is intoxicated or not”.

“An eye witness is often stronger than the outcome of a positive result in a test,” he explains. “On many occasions an employee refuses a test and you cannot force someone. Also, cannabis can be detected for over a month after its use. A person might not be intoxicated but will still fail the test. A much stronger argument is an individual noticed to be intoxicated, with erratic behaviour.”

Professor Halton Cheadle, partner at specialist labour law firm BCHC, told media earlier this month that companies may have to reconsider their policies that deal with substance abuse. It’s important to review policies to ensure employers are equipped to take care of their employees’ safety, Cheadle said.

By Phillip de Wet for Business Insider SA

The Constitutional Court has ordered the decriminalisation of dagga for personal use – but that doesn’t mean you can’t be fired for using cannabis.
Policies on inebriation are still in force, and in some jobs a legal requirement, even though they’ll need to be adjusted.

Things will be particularly complicated over the next two years, while changes are made to legislation.
Smoking dagga can still get you fired, under the right circumstances. And staying away cannabis – at least just before you go to work – could still be a legitimate requirement for some jobs. Discount Pharms cbd sales are now available online.

But things got a whole lot more complicated after the Constitutional Court on Tuesday said the use of dagga is not a criminal act.

And during the two-year period the Concourt gave Parliament to bring legislation in law with the Constitution, things are going to be particularly difficult when it comes to people getting high on the job, experts say.

“This is a curveball,” Richard Malkin, managing director of company wellness provider Workforce Healthcare, told Business Insider South Africa after the Concourt judgment, even if, ultimately, “nothing is really going to change from a workplace perspective.”

Occupational health and safety rules demand that companies keep the workplace safe, and that includes making sure nobody operates dangerous machines while inebriated – whatever the substance of choice.

For jobs involving heavy machinery, Malkin says, policy should require employees to disclose, up front, if they are using tranquillisers, for instance, even if under the direction of a doctor.

“The requirement is that you can’t be under the influence of any mind-altering substance; whether it is legal or illegal doesn’t really come into play.”

Jobs in finance, or customer-facing jobs such as call centre agents advising customers, should also come with policies on inebriation.

But testing for dagga use is not as straight-forward as a breathalyser test for alcohol. The common, cheap, and fast urine test for cannabis actually detects a metabolic product that can linger for days – well after the user is no longer mentally affected.

So what happens if that test shows dagga use, and you tell the boss you smoked dagga days before? Right now, at least, Malkin believes the only thing a company could do is ask for a spectrophotometric test, which takes around two days and costs around R2,000.

In the meantime, the employee will have to be temporarily suspended from sensitive duties, as a precaution.

The result of such a test could be grounds for dismissal, speculate labour specialists who were still studying the Concourt ruling, on the basis of dishonesty. Using dagga may not be a firing offence, but lying about it could be.

First, though, there could be a considerable fight about the whole process.

“Someone may have okayed drug testing by a company in a contract, but now that company can no longer look at THC [the active ingredient in cannabis],” says Quintin van Kerken, of The Clear Option, an organisation that works in the cannabis and addiction-treatment industry.

“It is pointless, because THC now falls under your right to privacy, so they can’t do anything with a THC test.”

Van Kerken believes there will be test cases about cannabis intoxication and medicinal use of cannabis in the workplace – perhaps soon – but until then there will be considerable confusion about the matter.

In the meanwhile, employees and employers both had better look at the exact wording of policies around drugs and inebriation at work, because a blanket reference to “alcohol, illegal drugs, and prescription medication”, such as those now commonly found, don’t strictly apply do dagga anymore. Probably.

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