COMMENTARY: Marijuana legality and use in the workplace
There is a common misconception that cannabis has been legalised in South Africa - but this is not the case just yet.
Judgment is still pending with the Constitutional Court‚ and if legalization is successful‚ Parliament still has two years to make the necessary changes to the relevant laws. Until then‚ while home users found smoking or in possession of marijuana may attempt to fend off prosecution citing privacy rights‚ instances of public use and being found under the influence of marijuana at the workplace can lead to criminal charges‚ as well as whatever recourse deemed fit by the workplace.
Due to the defendability of home use and despite pending legality‚ there is a rise in recreational marijuana smoking which is impacting how organisations manage and respond to workers under the influence. When‚ and if‚ marijuana use is legalised‚ the substance is likely to be more easily available‚ which will inevitably lead to increased use.
One of the advantages of legalising marijuana is that‚ as it is not considered a “hard drug” and is rarely associated with crime‚ it will undoubtedly free up our police force to focus on more dangerous crimes and substances. Another is that‚ with marijuana considered an illegal substance‚ users put themselves at risk obtaining the substance in shady areas and at the hands of a criminal element.
Legalisation puts the marijuana business in “clean” hands‚ makes it taxable‚ and - ultimately - safer to use.
On the downside‚ there will be an increase in intoxication‚ which could negatively impact work ability‚ driving ability and - as with alcohol - can lead to an increase in judgment errors.
For now‚ marijuana is still illegal‚ so users may face prosecution based on trace detection in urine tests. But even if recreational use is legalised‚ there will still be regulations surrounding responsible use. Included in this‚ such as with alcohol consumption‚ users will not be permitted to work under the influence.
Similarly to alcohol‚ marijuana use impacts a person’s ability to think and react clearly‚ thus negatively impacting their ability to properly function at work.
Businesses will need to ensure that they are adequately capable of testing for acceptable marijuana levels‚ and of carrying out the necessary disciplinary action should these levels be exceeded. More importantly‚ with use already on the rise‚ businesses need to be prepared now‚ already.
Most organisations should already have clearly defined policies around drug and alcohol use‚ depending on their industry and tolerance approach. However‚ it is likely that these policies currently class marijuana as an illegal drug and‚ therefore‚ tests for it using a classic urine test. Unfortunately‚ should marijuana become legal‚ a urine test will not be sufficient.
Alcohol testing is typically done using a breathalyzer. Drug testing‚ though‚ is often tested through urine samples‚ which are incredibly accurate at detecting marijuana use. However‚ the active compound in marijuana‚ Tetrahydrocannabinol (THC)‚ can linger in a person’s system for weeks - sometimes months for heavy users- which means that‚ even if a person is no longer “high”‚ they can still test positively for marijuana.
With this in mind‚ organisations will need to be able to prove that a user is under the influence in order to implement disciplinary procedures‚ rather than merely testing for consumption. To do so‚ employers will need a test process that offers a short window of detection.
Where urine tests can pick up traces of marijuana in the system for up to several months post-use‚ a saliva test can more accurately measure if a user if currently under the influence or not. Saliva tests with higher cut off levels for detection will only show a positive result for THC for about six hours post-use‚ rather than six weeks or months. This type of testing will need to form part of organisational drug and alcohol testing policies‚ especially where zero tolerance approaches are adopted.
Organisations can still implement the same disciplinary procedures that they currently employ for illegal substance use and abuse‚ due to the current illegal status of marijuana. Typically‚ this involves disciplinary action such as suspension and final warnings or immediate dismissal.At more lenient companies - rehabilitative measures are implemented for first time offences.
With legalisation‚ disciplinary action for marijuana use should follow similar protocols as for alcohol use and abuse. That is‚ use at the workplace should be strictly forbidden‚ as should working under the influence‚ where the substance is still affecting the users’ ability to function and perform.
Where a user tests positively for being under the influence‚ through a saliva test‚ organisations should have a clearly defined and communicated policy for the action that they will take. This often includes immediate removal of the offender from the premises‚ followed by a hearing‚ and suitable disciplinary action.
As with alcohol‚ if the user is either a first-time offender or their state has not led to any related accidents or incidents‚ it is recommended that organisations actively encourage or enforce rehabilitation before going straight to dismissal. This can include voluntary attendance of a substance abuse group‚ or a rehabilitative facility. The reasons for this are to mitigate fear-mongering and to drive responsible behaviour at the workplace.
Harsher action‚ however‚ is usually prescribed for employees whose inebriation results in accidents or incidents‚ or for repeat offenders. This can include long terms suspension without pay‚ or even dismissal.
Regardless of which approach‚ and subsequent policy and procedure‚ organisations adopt‚ it is vital that they carefully consider‚ review and amend their policy to marijuana now‚ before legalisation. It is equally important to understand the testing parameters of marijuana use‚ and begin implementing strict saliva testing to ensure accuracy and fairness alongside their chosen policy.
- Rhys Evans is a director at ALCO-Safe