Testing Positive for Cannabis in the Workplace

May 20, 2024

The decriminalisation of cannabis (also referred to as marijuana or weed) for personal use has caused a bit of an employer conundrum on how to deal with an employee who reports for work under the influence thereof.

In the case of Morasi v Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd [2023] 10 BLLR 1043 (LC), several important legal issues were raised regarding the employee’s use of cannabis, workplace policies, cultural rights, and discrimination claims.  Here’s a breakdown of the key points:

 

Cannabis Testing and Workplace Policies

The employee was denied entry to the workplace after testing positive for cannabis, which exceeded the tolerance level in the employer’s substance abuse policy. The employer argued that it was an inherent requirement of the job in a chemical plant to not be intoxicated by marijuana due to safety concerns.

 

Cultural Rights vs. Workplace Policies

The employee argued that his use of cannabis was related to cultural practices, as he attended a traditional healing course involving cannabis. However, the employer maintained that its obligation to maintain a safe working environment superseded the employee’s cultural rights.

 

Legalisation of Cannabis and Workplace Policies

Despite the decriminalisation of cannabis for private use, the employer argued that the testing below the limits set by its substance abuse policy was still necessary to ensure workplace safety, regardless of the legality of cannabis use.

 

Suspension and Unfair Discrimination Claims

The employee alleged that his denial of access to the workplace amounted to suspension and constituted unfair discrimination based on culture. However, the court found that excluding the employee from the workplace until his marijuana levels were acceptable as per policy did not amount to suspension. Additionally, the court ruled that testing below the policy limits was indeed an inherent requirement of the job, serving as a complete defence against discrimination claims.

 

Reasonable Accommodation

The court also considered whether the employer had taken sufficient steps to reasonably accommodate the employee during his absence from the workplace. It was noted that the employee was allowed to move to a different location and that his request to work from home was considered but not feasible due to the nature of his role.

 

Conclusion

Ultimately, the court dismissed the employee’s application, ruling in favour of the employer. This case highlights the complexities surrounding drug testing in the workplace, the balance between cultural rights and safety

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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