In 2017, the Western Cape High Court handed down judgment that the private use of marijuana was legal. This matter was taken to the Constitutional Court on appeal.
In a landmark Constitutional Court Case, Deputy Chief Justice Raymond Zondo delivered a judgment declaring that the private use and cultivation of marijuana to be legal. In doing so, the ban on private possession, consumption and private cultivation at home was ruled unconstitutional on 18 September 2018.
Despite the ruling, smoking marijuana in public is still illegal and dealing continues to be a criminal offence. But since the private use of marijuana has been legalised, how does this affect workplace policy against drug use?
Well, to put it simply, the workplace is not considered to be a private space, but rather public space. The question remains then, can an employee be disciplined for the use of a legal substance in the privacy of your own home? Employers now face some challenges from cannabis-consuming employees, making it essential for certain rules and regulations be put in place.
Certain jobs will require that you are sober when attending to the task at hand which means that many employers may conduct random drug testing in the workplace as part of their safety measures.
According to medical drug testing, marijuana can remain in your system for a few days after use while you may not be under the influence mentally. It is for this reason that we advise all employers to relook at their work place policies dealing in particular with the abuse of “alcohol, illegal drugs, and prescription medication”. Marijuana may not fall into this category at present and a rewording may be necessary. Health and safety considerations for the workplace and its employees will be under scrutiny.
There are still many questions that surround this issue. For example, when it comes to vicarious liability, will employers be allowed to contract out of it, if the incident occurs when the employee has marijuana in his/her system? Will employers be allowed to make it a condition of employment that, the employee is not allowed to use marijuana at all?
For now, it would seem that stricter measures need to be implemented by legalisation in order for the employer not to be unduly burdened by poor performance in the workplace or face liability due to the actions of employees under the influence.
In time, it will prove interesting to see how the legislature deals with the enactment of this judgment to legalise marijuana and in particular with regards to effects on the workplace.