Weed & Work
Many of us love winding down after a hard day or night’s work with a puff or nibble in the privacy of our homes or favourite Social Clubs. However, the question for many remains, “What do I do if my company decides to test me?”
The answer to this question really depends on the kind of work you do. That, and the willingness of your company to update its policy around testing for cannabis, especially because we have the Constitutional Right to have and use in private, and a supporting legal precedent.
Dangerous Work
If you work with any kind of heavy machinery, on a factory floor, in a dangerous environment of any kind, or in a field that requires absolute sobriety on the clock, you may face some extra difficulty in explaining your use. Yes, even for exclusive after hours enjoyment.
Companies that require dangerous work often have strict policies in place about substance use in general. Some companies even have a No Tolerance Policy, which may result in disciplinary steps taken against employees if they test positive for something like THC. While THC may show up in a screening, it is not an indication that someone is high at the time of testing.
Office / Safe Work
The argument for testing in jobs that are generally considered safe – office jobs and most service industry jobs – is significantly easier.
Testing may be routine in some companies, while companies may also selectively test employees based on their performance. Naturally, the stigma that cannabis use carries can lead to unfair processes by your company or their HR Department. The “lazy stoner” stereotype is unfortunately used disproportionately. This can lead to long-lasting disciplinary and arbitration processes in companies that have not yet updated their policies in line with current national policy around cannabis – the Constitutional Right to have and use it in private.
Dated Drug Screening
Most companies in South Africa still rely on urine drug screening tests. THC, as the main psychoactive and therefore most strictly regulated compound in cannabis is typically screened for alongside other popular, illicit substances in these tests.
Unlike various other substances, THC is stored in our fat, and can therefore stay in our bodies for weeks, even months, showing up positive on a urine analysis even ages after use. This makes testing pretty unfair for anyone, regardless of the kind of work they are doing.
Legal Precedent
Enever v Barloworld (2024) is one such case. This case is also the legal precedent on how to deal with workplace disputes over what you do after hours in private.
Bernie Enever was subjected to company standard testing (urine analysis) for substance use. She came up positive for THC, and the company’s zero-tolerance Alcohol and Substance Abuse Policy resulted in her unfair dismissal back in January 2020.
It took Bernie 4 long, expensive years to fight and win her case against her former employer at the Labour Appeal Court of South Africa.
She had never consumed before or at work, yet the company had unfair policies in place that cost Bernie her office job, and a fair amount in legal fees. However, her bravery in challenging the injustice of those policies means that employees can now challenge such policies, and keep their jobs. Of course, dangerous jobs may have different outcomes to other jobs.
A Solution
Bernie’s case gives us the opportunity to request that impairment be proven in the workplace rather than relying on out-of-date methods and policies. Urine and blood tests are notoriously inaccurate for proving THC-impairment. They do not indicate if someone is under the influence of THC at the time of testing, which means they cannot prove impairment at the time of testing.
Saliva tests are being discussed as an alternative to older testing options. Although saliva tests can more easily prove impairment, they are still known to deliver false-positives, and do not prove impairment.
Your company and/or boss should be able to prove that you are high and incapable of working properly through required performance reviews before taking any disciplinary steps against you.
To prove you are not under the influence or incapable of doing your work well, you should be able to request a cognitive impairment test. Your company may also choose to perform this test on you if they suspect you are not 100% sober on the job.
A cognitive impairment test is usually in the form of a questionnaire, but may also include some physical testing to check your mental clarity, physical state, and ability to perform your duties well. Some exercises may be similar to those required to do dangerous work. It really depends on your company’s policy around this.
It’s All About the Timing
When you consume still matters. If you are consuming just before work, on the clock, over lunch, or purely on your own time determines your argument for your use.
With Bernie’s case, after hours use in private was found to be her Constitutional Right. The judge recommended that workplace policies should be updated to allow for after hours use of cannabis.
Despite this victory, be warned that you are playing with fire if you get high before clocking in for the day, over your lunch break, or on the clock, particularly if you work in an environment that requires you to be stone cold sober.
Of course, some of us do exceptionally well when we wake and bake, but for others this alternative breakfast can impact work performance negatively. Choosing when and how much we consume really matters. So too does the quality and quantity of the work we do with and without a puff or nibble.
So, if you have an office job and you are required to present some bodily fluids for analysis, request a Cognitive Impairment Test alongside it or instead of it. It may also be useful to present your boss and/or HR department with Bernie’s case and the 2018 Constitutional Court Ruling. You may be lucky enough to have your company update their policies around cannabis use in private on your own time. If not, at least you know you have a solid argument should you end up in an arbitration battle with your company.
Your job can’t defile your Constitutional Rights, but you also don’t want to FAFO – check your company policy and make sure that what you agree to honours your right to choose what you do in your own time in private.