The Cannabis Judgment will have occupational health and safety implications. In view of the fact that the judgment effectively allows employees to lawfully consume cannabis in private, the question that arises is how employers are going to comply with their onerous general duty under the Occupational Health and Safety Act 85 of 1993 (“the OHS Act”) to provide and maintain a safe working environment whilst such working environment could encounter employees who are consuming cannabis. Although this is not a new proposition, the impact of the Cannabis Judgment may encourage this behaviour.
Ultimately, we are of the view that employers will need to revise and possibly amend their health and safety policies in response to the implications of the Cannabis Judgment. An employer should conduct additional risk assessments based on a number of factors pertinent to risk at the employer’s particular workplace. In embarking upon such assessments, we suggest that employers have regard to the following considerations.
Duties of Employers regarding cannabis in the workplace
Firstly, the employer should be mindful of the fact that the Cannabis Judgment is going to require the employer to embark upon a careful balancing exercise. On the one hand, the employer is going to be required to respect its employees’ rights to privacy. On the other hand, the employer should assess the risks that the impact of the consumption of cannabis may have on health and safety at its workplace.
Secondly, employers should to have regard to section 8(2)(d) of the OHS Act which imposes the requirement on employers to give effect to their general statutory duties. In conducting appropriate risk assessments, the employer would undertake three activities:
(i) The employer should identify all hazards that are present in the workplace.
(ii) The employer must assess the risks that such identified hazards may pose to employee health and safety.
(iii) The employer should then take reasonable steps to either eliminate or mitigate the identified hazards.
In undertaking the above mentioned activities, it is conceivable that there will be situations where the nature of the work performed by the employee and the nature of the employer’s workplace necessitate a zero-tolerance approach towards the consumption of cannabis by its employees. In this sense, the employer would argue with conviction that the consumption of cannabis by an employee in the context of the workplace environment could constitute a hazard that the employer is required to eliminate from its workplace.
Thirdly, a consideration which will also have an impact upon the consumption of cannabis by an employee is the fact that the OHS Act not only imposes obligations upon employers, but also imposes obligations upon employees. Section 14 of the OHS Act imposes a statutory duty on employees to ensure that their actions do not endanger their own health and safety and that of others with whom they work.
Duties of Employees regarding cannabis in the workplace
Accordingly, employees have a duty to continuously evaluate whether their conduct complies with the above-mentioned standard. We are of the view that this duty will necessarily be impacted by the consumption of cannabis by an employee. In this sense, it is submitted that even where an employer does not prohibit the consumption of cannabis in private by its employees through the implementation of workplace rules and policies, such employees who decide that they will consume cannabis in private will need to assess whether such a practice does not endanger their own health and safety and that of others whilst they are performing their duties at the employer’s workplace.
Revising your Risk Assessment
Ultimately, a risk assessment may demonstrate that little or no latitude can be afforded to an employee wishing to indulge in cannabis consumption in private (for example, in their motor vehicle). This is a contextual exercise.
In this regard, it is submitted that the employer should have regard to the following guiding principles in response to the Cannabis Judgment:
(i) The nature of the employer’s workplace.
(ii) The nature of the work performed by the particular employees in question.
(iii) The extent to which the employees in question are under supervision by superiors.
(iv) The possibility of having the employer declare that its workplace is a “public” space where the usage of cannabis cannot be tolerated. This would be determined by its risk assessment.
(v) Drug testing.
With regard to the issue of drug testing, an employer should put greater emphasis on random drug testing in its workplace (such as, for example, random urine tests) in line with its workplace health and safety policies. The employer will be entitled to refuse to allow the relevant employee entry to the workplace if a positive result is yielded. Such a decision by the employer will be justified in light of the OHS Act General Safety Regulations. In terms of General Safety Regulation 2A(1), an employer “shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs to enter or remain at a workplace”. General Safety Regulation 2A(2) compliments the former provision in that it provides that “no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs”.
In this regard, we are of the view that employers should consider the following paragraph written by Alan Rycroft as instructive:
“In the absence of a workplace policy or agreement, testing an employee without the consent of an employee is in violation of his or her constitutional right to privacy. But if the employee refuses to be tested, the employer can still refuse entry to the workplace or demand the employee leave the workplace, using [OHS Act] General Safety Regulation 2A(1) as authority. This exclusion can be on a no work, no pay basis, and if challenged, the employer’s defence would be that it offered the test as a way of verifying that the employee was not under the influence of alcohol or drugs.”
Employers should communicate their stance
Whatever the final stance taken by the employer on the issue of cannabis consumption by employees may be, it is clear that the employer is, at the very least, going to have to clearly communicate what its position is to its workforce. If the employer is of the view that it will be necessary for it to implement or maintain a zero-tolerance policy towards the use of cannabis by its employees, such employer will need to justify its stance and ensure that same is communicated to its employees through workplace policies, rules and practices.
On the other hand, if an employer were to take a more lenient stance on the consumption of cannabis by its employees depending upon the nature of the workplace and nature of the work to be performed, such employer would need to define the exact limits within which employees would be permitted to do so. In this regard, the employer would still need to include a detailed section on cannabis use in its workplace policies, particularly its health and safety policy, and ensure that employees are made aware of same to prevent any cannabis-induced health and safety incidents from occurring.