How To Deal With Cannabis In The Workplace

South Africa has joined the ranks of many other countries in legalising cannabis for personal use. It is, however, an intoxicating substance and employers should have clear policies on the use of such substances.

- Amanda Visser

The consumption, possession and cultivation of cannabis may have been decriminalised in certain circumstances, but the order of the Constitutional Court certainly has no bearing on the rules of the workplace.

South Africa has joined the ranks of 33 other countries who have decriminalised the use of cannabis. In South Africa it will only be legal to grow and consume cannabis for private use, in private.

The workplace can under no circumstances be considered “private”, including the private vehicles of employees in the parking lot, or the restrooms – even if people may have a legitimate expectation of privacy, it remains public places, frequented by other people.

Gavin Stansfield, a director of law firm Cliffe Dekker Hofmeyr’s employment practice, says employees will not be committing a criminal offence if they are smoking cannabis at home. But it will become a problem if they arrive at work under the influence of an intoxicating substance.

Health and safety

“If the nature of your employment is such that you are governed by occupational health and safety legislation, which says you may not operate a certain type of machine under the influence of an intoxicating substance, and you do come to work under the influence and operate that machine, it will be a criminal offence. It will be a breach of the specific health and safety regulations,” says Stansfield.

He says even if an employee is not governed by health and safety legislation, people coming to the workplace under the influence will be committing a breach of their contract of employment.

“I am sure there will be an implied term (in the contract) that says you are not allowed to work under the influence of an intoxicating substance.”