Since the Constitutional Court legalised the private possession and use of cannabis during September, many concerns have been raised about what this would mean in the workplace. Employers want to know how they will ensure that people do not come to work under the influence of cannabis.

Michael Opperman, CEO of Omni Labour Consultants, explains that employers must have policies and procedures in place to ensure that employees are sober at work. “You have to read and understand the judgment of the Constitutional Court very clearly in this regard,” he notes.

“Judge Raymond Zondo said he had ‘concluded that the limitation is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. He then made an order declaring the relevant provisions about the use of cannabis constitutionally invalid, where it criminalises the use or possession of cannabis in private by an adult for personal consumption.

“‘Private’ would not mean any public place or place of work. At the workplace, the General Safety Regulation Regulation 1031 section 2A would apply regarding intoxication,” says Opperman.

According to section 2A, an employer should not permit anyone who is, or who appears to be, under the influence of intoxicating liquor or drugs, to enter or remain in a workplace. People in a workplace are not allowed to be under the influence of or have in their possession, use or offer other people intoxicating liquor or drugs.

“Therefore an employee, who is contractually bound to the employer during certain hours, has to adhere to the employer’s rules, regulations and policies in the workplace, including undergoing the same or similar sobriety tests for cannabis as with any other narcotic or alcohol-related transgression,” says Opperman.

The most important aspect is that employers’ policies should embrace the concept of sobriety in the workplace. There should be a zero-tolerance policy for any use of non-medical, controlled, mind-altering substances.

Section 8(1) of the OHS Act states that employers should provide and maintain, as far as possible, a working environment that is safe and without risk to the health of their employees. It is common cause that the enforcement of sobriety is reasonably possible.

Opperman asserts: “The legalisation of the private use of cannabis therefore does not in any way exonerates employees from their duties at work, the policies applicable in the workplace, or the legislation that governs misconduct as a result of being under the influence of cannabis at work.”

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