Substance Abuse In The Workplace
The Constitutional Court sent shock waves for employers, human resource departments and labour consultant alike towards the end of 2018 with its judgment in Minister of Justice and Constitutional Development and others v Prince (Clarke and others as Intervening Parties, Doctors for Life International Inc as amicus curiae) and related matters 2018 (10) BCLR 1220 (CC).
This case involved three separate cases in the High Court that were consolidated. These cases questioned the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965 insofar as they related to the private use and consumption of marijuana.
The Constitutional Court declared certain provisions of both these Acts unconstitutional to the extent that they encroached upon the private use and consumption of marijuana for personal purposes.
The Constitutional Court made an order declaring that, with effect from the date of the Court’s judgment the offending provisions of are inconsistent with right to privacy and, therefore, invalid to the extent that they make the use or possession of marijuana in private by an adult person for his or her own consumption in private a criminal offence.
The Constitutional Court also made an order declaring that the operation of these orders was to be suspended for a period of 24 months from the date of its judgment to enable Parliament to rectify the constitutional defects.
Employers were panicked. A lot of employers were of the opinion that now they could no longer dismiss employee for being in possession of marijuana and/or under its influence. The Constitutional Court, in making this judgment, did not take away any power from employers. Employers are still free to formulate their own workplace rules. The legalisation of private use of marijuana does not interfere with the right and obligations that employers have when it comes to workplace discipline. An employer needs to make his employees aware and understand that marijuana is not acceptable in the workplace. The workplace is not a private space. This means that an employee cannot smoke during working hours or come to work under the influence of marijuana. For an analogy, marijuana can be viewed in the same light as alcohol. Would an employer let an employee who is under the influence of alcohol onto their premises to perform their duties?
The Mthembu v NCT Durban Wood Chips case
The case of Mthembu and others and NCT Durban Wood Chips  4 BALR 369 (CCMA), is the first case before a tribunal since the Constitutional Court legalised the private possession and use of marijuana. In this case the CCMA accepted the results of a urine test as proof that the employees were under the influence of marijuana and found their dismissal for this reason to be fair.
In the award, the CCMA commissioner confirmed that the Constitutional Court had merely declared the private use of marijuana to be legal and that employers are still entitled to discipline employees who use marijuana or are under its influence during working hours.
Occupational health and safety considerations
This case brought to light the very real health and safety implications of the use of marijuana at work. The employer claimed that due to the highly dangerous operations in its factory, it had a zero tolerance approach to working under the influence of alcohol or drugs (including marijuana). The applicants were aware of this. The CCMA commissioner noted that, because of the nature of the employer’s operations, such a prohibition was reasonable and the employees knew that they were not allowed to report for work while under the influence of marijuana. Their dismissal was therefore fair.
This case confirmed that employers still have a right to moderate their affairs in the workplace. The legalisation of personal use for marijuana did not mean that employers had now become powerless to employees who showed up to work under the influence.
Testing employees for substance (ab)use
If an employer suspects an employee is under the influence of marijuana at work, he or she may require the employee to undergo a variety of tests to determine whether the employee has used marijuana recently and whether this will affect their performance at work.
There are certain consideration with these tests as marijuana can be present in the human body for a couple of days past its use. It must also be noted that the more frequent the use, the longer the marijuana substance stays in the human body.
The same prohibitions against this form of testing contained in section 7 of the Employment Equity Act 55 of 1998 apply.
Setting appropriate workplace rules
Employers have the right to set rules for the use of marijuana in the workplace in much the same way that employers currently set rules for use of alcohol. In particular, employers may prohibit the use of marijuana at work or during working hours and may also prohibit employees from attending work while impaired. Workplace rules regarding the use of marijuana may be enforced through the application of the employer’s disciplinary policy and procedure.
For assistance in navigating alcohol, marijuana and substance abuse in the workplace, as well as drafting a policy and procedure, please contact Rajaram Mvulane Attorneys at firstname.lastname@example.org