The ban on private possession, consumption and cultivation of marijuana at home was ruled unconstitutional by the Constitutional Court on 18 September 2018, with the result that both the use and cultivation of dagga in private was effectively decriminalised. South Africa has joined the ranks of 33 other countries (including Australia, Canada, Spain and Switzerland) who have decriminalised the use of cannabis.

Given that the Cannabis judgment does not strictly locate private to an adult person’s home or private dwelling, the implications for the workplace should be considered.

Gavin Stansfield, a director of law firm Cliffe Dekker Hofmeyr’s employment practice, explained to BusinessTech that employees will not be committing a criminal offence if they are smoking cannabis at home. It will however become a problem if they arrive at work under the influence of an intoxicating substance, since it would be a breach of specific health and safety regulations and/or of their employment contract.

Anastasia Vatalidis, head of Werksmans Attorneys’ labour and employment practice, furthermore reported in Fin24 that the use of cannabis and the impact of using it in the workplace should be seen in the same light as the use of alcohol.

The following challenges are anticipated around the enforcement of cannabis use:

• There is no reliable test that is able to determine “the immediate state of intoxication” for cannabis as with a breathalyser test for alcohol. There are a number of ways to test for cannabis. These include urine, hair and blood analysis. Traces of cannabis can however be detected for up to 10 days to six months after use. In contrast, alcohol may leave the bloodstream within hours after consumption.
• Unlike alcohol, the effects of cannabis on an employee’s ability to perform his or her duties are less well known. It appears also that the tests for cannabis cannot accurately determine the degree of impairment of the employee to do his or her job.

Employers will have to train their line managers and security personnel to be able to draw a distinction between someone who may have smoked/consumed something, including cannabis, and who is under the influence of intoxicating substances while at work.

Employers must have clear policies that set out the rules with regards to the use of alcohol or any other intoxicating substance – which now includes cannabis. Any policy aimed at addressing specifically the use of cannabis and its effects in the workplace, would have to consider factors such as consent to testing for cannabis, the manner of testing, the nature of the employer’s business, the employee’s duties, the circumstances in which the offence was committed, the observable extent of the impairment, and the employee’s history of cannabis or other drug-related offences at work.