There is a common misconception that cannabis has been legalised in SA. It has not. Judgement is still pending with the Constitutional Court, and, if legalization is successful, parliament still has two years to make the necessary changes to the relevant laws.

Until then, while home users found smoking or in possession of marijuana may fend off prosecution by citing privacy rights, public use can lead to criminal charges. This includes being under the influence of marijuana at the workplace.  An employer can also take whatever recourse deemed fit.

An increase in use

As the use of marijuana in a home can be defended, despite pending legality, there is a rise in recreational marijuana smoking, which is impacting how organisations manage and respond to workers under the influence. When, and if, marijuana use is legalised, the substance is likely to be more easily available, which will inevitably lead to increased use.

Benefits of legalising dagga

One of the advantages of legalising marijuana is that, as it is not considered a hard drug and rarely associated with crime, it will undoubtedly free up our police force to focus on more dangerous crimes and substances.

Another is that, with marijuana considered an illegal substance, users put themselves at risk obtaining the substance in dangerous areas and at the hands of a criminal element. Legalisation puts the marijuana business in clean hands, makes it taxable and, ultimately, safer to use.

Disadvantages of weed

On the downside, there will be an increase in intoxication, which could negatively impact working ability, driving ability and, as with alcohol, can lead to an increase in judgement errors. For now, marijuana is still illegal, so users may face prosecution based on trace detection in urine tests.

Even if legal, you can’t light up at work

Yet, even if recreational use is legalised, there will still be regulations surrounding responsible use. For example, users will not be permitted to work under the influence. Marijuana use impacts a person’s ability to think and react clearly, thus negatively impacting their ability to properly function at work.

Businesses will need to ensure that they are adequately capable of testing for acceptable marijuana levels, and of carrying out the necessary disciplinary action should these levels be exceeded. More importantly, with use already on the rise, businesses need to be prepared … now!

Clearly defined company policies

Most organisations should already have clearly defined policies around drug and alcohol use, depending on their industry and tolerance approach. However, it is likely that these policies currently class marijuana as an illegal drug and, therefore, tests for it using a classic urine test. Unfortunately, should marijuana become legal, a urine test will not be sufficient.

Alcohol testing is typically done using a breathalyser. Drug testing, though, is often tested through urine samples, which are incredibly accurate at detecting marijuana use. However, the active compound in marijuana, Tetrahydrocannabinol (THC), can linger in a person’s system for weeks – sometimes moths for heavy users.

Although a person is not under the influence, or “high”, they can still test positive for marijuana. With this in mind, organisations will need to be able to prove that a user is under the influence in order to implement disciplinary procedures, rather than merely testing for consumption. To do so, employers will need a test process that offers a short window of detection.

Updating testing procedures

Where urine tests can pick up traces of marijuana in the system for up to several months post-use, a saliva test can more accurately measure if a user if currently under the influence or not. Saliva tests with higher cut off levels for detection will only show a positive result for THC for about six hours post-use, rather than six weeks or months.

This type of testing will need to form part of organisational drug and alcohol testing policies, especially where zero tolerance approaches are adopted. Organisations can still implement the same disciplinary procedures that they currently employ for illegal substance use and abuse, due to the current illegal status of marijuana.

Disciplinary actions

Typically, this involves disciplinary action such as suspension and final warnings or immediate dismissal. At more lenient companies, rehabilitative measures are implemented for first time offences. With legalisation, disciplinary action for marijuana use should follow similar protocols as for alcohol use and abuse.

Therefore, use at the workplace should be strictly forbidden, as should working under the influence, where the substance is still affecting the users’ ability to function and perform.

Where a user tests positively for being under the influence, through a saliva test, organisations should have a clearly defined and communicated policy for the action that they will take.

This often includes immediate removal of the offender from the premises, followed by a hearing, and suitable disciplinary action. If the user is a first-time offender or their state has not led to any related accidents or incidents, it is recommended that organisations actively encourage or enforce rehabilitation before going straight to dismissal.

This can include voluntary attendance of a substance abuse group, or a rehabilitative facility. The reasons for this are to mitigate fear-mongering and to drive responsible behaviour at the workplace. Harsher action, however, is usually prescribed for employees whose inebriation results in accidents or incidents, or for repeat offenders. This can include long terms suspension without pay, or even dismissal.

Regardless of which approach and subsequent policy and procedure, organisations adopt, it is vital that they carefully consider, review and amend their policy to marijuana now, before legalisation. It is equally important to understand the testing parameters of marijuana use and implementing strict saliva testing to ensure accuracy and fairness alongside their chosen policy.