South Africa seems to be following the trend in the US to legalise cannabis. Last year, Judge Dennis Davis ruled in a full bench decision of the Western Cape High Court, that the use and cultivation of cannabis by an adult in a private home is constitutionally legal. While this decision needs to be confirmed by the Constitutional Court before taking effect, it does cast a spotlight on the adequacy of company policies regarding the use of legal and illegal substances including dagga in the workplace.
MD of Workforce Healthcare, Dr Richard Malkin has taken a particular interest in drug testing of employees in the workplace and says that workplace policies need to be very robust, given that both employers and employees are tasked with creating a safe workplace. “An employer is held personally responsible if the workplace is not safe and employees can be prosecuted if they don’t comply. In fact, every employer has a duty to stop employees from entering or remaining at work if they appear to be under the influence of intoxicating liquor or drugs. Depending on a company’s policy, an employee who arrives at work stoned or impaired, and who poses a safety risk, could be fired or arrested. The problem is that dagga for instance can show up in the bloodstream up to a week later – it could become legal at home and not in the workplace and then what does a company do?” queries Malkin.
He clarifies that the term safety is used broadly and may involve physical safety or even reputational safety. “A stoned employee in the call centre, an equities trader or a crane operator may all pose safety risks for different reasons,” he explains.
Malkin has observed that certain industries tend to turn a blind eye to substance use when it is perceived to make employees more productive. However, safety concerns are often a company’s primary reason for prohibiting dagga in the workplace, and they are a valid basis for banning the drug. Usage has been linked to an increase in job accidents and injuries. The short-term effects include impaired body movement, difficulty with thinking and problem-solving, memory problems, and an altered sense of time.
“Testing in the workplace is a complex issue,” he says. “Companies can’t simply say that they have a zero tolerance for substance abuse. Instead, it is important to state acceptable levels in the company’s policy document. Levels also depend on the job itself and the risks associated with doing it safely. Employers can set the standard in their own workplace, irrespective of legal limits.”
Furthermore, pro-dagga groups advocate that employees should not consent to drug testing unless their employment contract specifically covers drug testing or the company has a comprehensive occupational health policy in place. So, a policy is critical. Before you perform drug and alcohol tests, you need to gain written consent from your employees. We need to have a source for reference. To do this, you need an occupational health and safety policy in place, which is set out in the employment contract. The employee’s signature on his employment contract should include consent for drug testing.
Testing for dagga use is particularly difficult. First the employee is asked whether he is taking any substances. Then a screening test is done using saliva or urine. If the test indicates dagga use, it needs to be sent to a lab for confirmation. The testing is further complicated as the test seeks the break down product of cannabis and not the presence of the substance itself.
Given that South Africa is one of the world’s largest producers of dagga and has some of the most lax dagga laws in the world according to Wikipedia, Malkin’s recommendation is to get clear about your policy on dagga.
“In the workplace, it all boils down to your substance abuse policy,” he explains. “An employee could for instance take a Valium or cough mixture, both legal substances, and be at the office in no condition to work or to operate machinery. I advise companies to use experts to help formulate their company policy and avoid the minefield of complications around substance abuse in the workplace. Workforce Healthcare has helped several organisations prepare policies and we are able to do the necessary random periodic testing countrywide,” he says.
Malkin alerts South Africans to another issue which has an unintended consequence. If a person consumes cannabis at home and the person drives a vehicle whilst stoned, the person cannot be successfully prosecuted as there is no current legislation that defines an acceptable level of cannabis in the body whilst driving.
Legislation needs to be amended that defines an acceptable level of cannabis in the body to drive just like alcohol which is clearly defined. Malkin is of the opinion that until legislation is amended, there is a risk that South Africans are exposed on the roads with seemingly no consequence to the perpetrator.