Beyond Zero Tolerance: Rethinking Cannabis Policies by Balancing Workplace Safety and Employee Rights
Joubert & Associates
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In a recent legal development, the Labour Appeal Court (LAC) has shaken up the landscape of workplace drug policies, particularly concerning the use of cannabis. The landmark ruling in the case between Bernadette Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd case challenges the longstanding practice of zero-tolerance policies regarding the use of cannabis by employees. The LAC's decision underscores the necessity for employers to balance workplace safety carefully with employees' rights to privacy and dignity. This significant shift in legal interpretation prompts a critical examination of existing workplace drug policies and their implications for both employers and employees.
The case concerned an employee, Enever who was dismissed after testing positive for cannabis at work, despite not being impaired during working hours. The employer's zero-tolerance policy towards cannabis use, part of its Alcohol and Substance Abuse Policy, resulted in Enever being summarily dismissed. The employee argued that her dismissal was unfair, citing her right to privacy and the fact that cannabis use was legal for private consumption as her reasons. The Labour Court initially upheld the dismissal, but the Labour Appeal Court (LAC) overturned this decision. The LAC ruled that the zero-tolerance policy infringed on the employee's right to privacy and dignity, especially considering the lack of impairment at work. The court found the dismissal to be automatically unfair on the basis of discrimination, and awarded the employee 24 months’ compensation.
Simplifying private use of cannabis
South African citizens have the right to privacy and in 2018 the private use of cannabis was decriminalised. It is important to note that the term private carries significant weight. The following definitions are important to take note of as defined by the Cannabis for Private Purposes Bill:
“Possess in private: means to keep, store, transport or be in control of cannabis or a cannabis plant, respectively, in a manner that conceals it from public view.”
“Private place: means any place, including a building, house, room, shed, hut, tent, mobile home, caravan, boat or land or any portion thereof, to which the public does not have access as of right.”
“Public place: means any place to which the public has access as of right.”
In essence, the use of cannabis is only legal if the possession and use thereof is not in a public place.
In South Africa, companies are usually regarded as private property rather than public spaces like parks or streets. Companies, whether private or publicly listed, are entitled to adopt policies against the use or possession of cannabis on their premises. Thus, a zero-tolerance policy can be enforced. Publicly listed companies' properties will still be considered private property. So too many government organisations' properties.
The challenges around cannabis arises in situations where an employee tests positive for cannabis in his/her system as a result of private consumption outside of working hours.
The sudden significance of this issue lies in the fact that a positive test result does not necessarily mean that an employee is incapable of performing their duties. There is a significant distinction between being under the influence and simply testing positive. The prevailing belief is that a positive test result indicates that someone is under the influence of a substance. However, in reality, this is not the case. Unlike alcohol, cannabis can remain detectable in the body for an extended period of time which means you can test positive without being under the influence.
How long does cannabis stay in your system?
Lancet Laboratories identified an average window for when cannabis can be detected:
This is supported by research done by American Addiction Centers who differentiate between the different types of testing:
According to both studies, urine testing shows prolonged retention of high concentrations of substances. In South Africa, urine samples are preferred due to their non-invasiveness, ease of collection without specialised training, and simplicity of analysis. This makes them the most appealing option compared to tests requiring specialised instruments.
In a separate study conducted by the International Council on Alcohol, Drugs & Traffic Safety, the inquiry was made into the potential impairment of driving ability due to cannabis use. Given that South Africa's legal blood alcohol concentration (BAC) limit is 0.05 grams per 100 millilitres of blood, this study was worth considering.
While the study uncovered parallels in the effects of alcohol and cannabis, it lacked adequate evidence to establish that testing positive for cannabis equated to impairment for driving. Regrettably, cannabis, similar to alcohol, affects individuals differently, and its impact on the body varies based on usage frequency (impacting the individual’s tolerance level) and quantity.
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How to balance the employee’s rights with the workplace safety
In light of the LAC’s decision, employers face the challenge of not only implementing workplace regulations, but also substantiating them. Consequently, employers must establish the following:
The golden rule is to prove intoxication, indicating that the employee is actively under the influence of the substance and not merely that it is present in their system. According to advice from Bowmans (African legal lawyers), a zero-tolerance stance (requiring only a positive test) is only justifiable if it is an inherent requirement of the specific employee in question.
Joubert and Associates can help your company navigate the challenge of identifying and documenting intoxication, thus preventing your company from unintentionally engaging in unfair labour practices.
Article written by Allen Stroebel
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