The Cannabis for Private Purposes Act, 2024 (Cannabis Act), was published on 3 June 2024 and will become effective on a date to be determined by the President. The statutory framework for the private use, possession and cultivation of cannabis by adults reflects the decision by the Constitutional Court six years ago to decriminalise the private use of cannabis.1 The issues that employers have faced since the Prince judgment in 2018 have highlighted the significant impact of these changes on the workplace.
In the 2018 Prince judgment, the Constitutional Court decriminalised the private use of cannabis by adults. This led to increased private cannabis use. What has also increased are misunderstandings about where, when, and among whom cannabis may be ingested, especially in the workplace context. During the years that followed, there has been an increase in unfair dismissal and unfair discrimination cases related to cannabis use. Now, with the enactment of the Cannabis Act, it is crucial to reassess workplace policies that regulate cannabis use, keeping the lessons learnt in the Labour Court front of mind.
Key provisions of the Cannabis Act for employers:
- Private use and possession: Adults are allowed to use and cultivate cannabis in private places, which include homes and private communal lands, but cannabis must be concealed from public view. The use of cannabis in a private place in the presence of non-consenting adults or children is however illegal.
- Public restrictions: While adults may possess limited quantities of cannabis in public, its use remains strictly prohibited in public places.
- Dealing in cannabis: Selling or distributing cannabis remains illegal, with severe penalties, including imprisonment of up to 10 years.
- Exceeding legal limits: Possession or cultivation of cannabis beyond the prescribed amounts is prohibited and can lead to fines or imprisonment of up to five years.
- Transportation: The Cannabis Act governs the transportation of cannabis, including prohibiting its use in vehicles on public roads and possession of cannabis beyond legal limits while being a passenger.
- Expungement of criminal records: Individuals with previous convictions for possession or use of cannabis under old laws can have their criminal records expunged automatically. Those with convictions associated with having been presumed to deal in cannabis by virtue of their possession of the substance will need to apply to have such convictions expunged.
The altered classification of cannabis use from illegal to legal in defined circumstances does not mean that employees may report for duty under the influence of cannabis, to the extent that they cannot work safely or productively. Whether cannabis use forms part of health, spiritual, or recreational practices, it does not circumvent the application of workplace policies that ensure safety and productivity.
The Cannabis Act does not alter an employer's obligation, as set in specific legislation like the Occupational Health and Safety Act 85 of 1993 and the Mines Health and Safety Act 29 of 1996, to maintain a safe working environment.
Employers should update substance abuse policies to treat cannabis more like alcohol and less like illicit substances to avoid finding their efforts to address the effects of cannabis use in the workplace thwarted. In NUMSA v PFG Building Glass,2 an employee who repeatedly tested positive for cannabis argued that the test results in itself should not attract disciplinary action and dismissal since cannabis was no longer an illegal substance. His dismissal was found to be unfair.
Workplaces that incorporate the use of heavy machinery, driving of vehicles, or otherwise dangerous environments may nevertheless remain justified in adopting a zero-tolerance approach to substance use. A substance use policy that is fully intolerant of cannabis consumption was recently scrutinised in Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd3 where it was found that the extent to which a workplace policy might interfere with an employee's personal choice to consume cannabis in private outside of working hours will depend on, amongst other factors:
- the nature of the employee's role;
- the nature of the workplace; and
- the statutory requirements for safety that apply to the specific workplace.
In such circumstances, there must be a rational and proportionate connection between the policy, the employer's operational needs and safety obligations.
Zero-tolerance policies are at risk of being found to be overbroad. A drug test that indicates the presence of cannabis in the system that may have been consumed seven days ago cannot be said to be rationally linked to operational needs if it does not indicate that the employee is incapable of working safely.
Employers and occupational medical practitioners should evaluate whether a zero-tolerance approach to cannabis is justifiable and whether the means of testing is appropriate in such circumstances. Alternatively, employers may need to evaluate if an acceptable limit of cannabis traces can be established. This may involve initial screening tests (eg saliva tests) followed by further tests to assess impairment levels.
This approach was applied by the employer in Marasi v Petroleum Oil and Gas Corporation of South Africa.4 The Labour Court found that a policy which places a limit on the permissible amount of a substance in the body is not unconstitutional, particularly if the employee works in close proximity to dangerous equipment on a daily basis. The cost implications associated with the various testing methods may nevertheless render these options unsuitable depending on the frequency of testing required and the purpose for which it is administered
By pre-empting the heightened use of cannabis following the enactment of the Cannabis Act, employers can create a compliant and safe work environment taking into account the right of employees to lawfully consume cannabis. In so doing also avoiding lengthy dispute resolution processes after dismissals in terms of outdated policies. Given the evolving legal landscape, it is essential for employers to adapt their policies and practices, ensuring both compliance with the law (the various health and safety laws and the Cannabis Act) and the safety of the workplace.
