South Africa Employers Must Change Approach to Workplace Marijuana Testing, Say Labour Lawyers

In September 2018, the South Africa Constitutional Court legalized the use of marijuana. And while this has resulted in a swift shift in cultural norms, particularly increased use of the drug, workplace policies on marijuana use have been slow to adapt.

“Employers will have to reconsider policies that deal with substance use in light of this change,” says Halton Cheadle, partner at labour law firm HCBC. While it was previously appropriate to use urine, blood, and hair follicle tests to screen for general marijuana use, the change in the law now requires employers to test specifically for intoxication at the workplace. Newer methods of testing must only check for current intoxication.

Cheadle suggests employers use observational checklists to determine whether an employee is exhibiting signs of marijuana intoxication because such signs are not as well known as, for example, alcohol intoxication. “The intoxicating effects of alcohol are well known and, for that reason, most employers have a zero-tolerance policy against being drunk at work. The effects of cannabis, on the other hand, are not as familiar...” Cheadle also suggests using saliva tests to test for recent use of marijuana instead of general long-term use. However, this is an imperfect test as saliva tests reveal marijuana use within at least the past 24 hours, while even heavy marijuana intoxication rarely lasts longer than 8 hours. Until an accurate test method akin to a breathalyzer is invented and mass-produced, observation remains the fairest way to determine current marijuana intoxication.

Cheadle and his HCBC associate, Danny Hodgson, do not mean to downplay the dangers of marijuana intoxication in the workplace. Marijuana impairs cognitive abilities and motor function, which can lead to accidents when operating machinery, driving a vehicle, or performing other dangerous work. This poses risks not only for impaired workers, but also for the workers around them. “This means an employer is obliged to implement policies and put measures in place to limit any potential risk of harm, which includes identifying intoxicated employees through observation and drug testing and excluding them from the workplace,” says Hodgson.

While Hodgson’s and Cheadle’s observations apply to their home country of South Africa, they are also relevant in a growing number of other states and regions which have legalized or will eventually legalize the use of marijuana.

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