Many employers have policies that prohibit employees from being under the influence of alcohol or drugs at work and this type of policy remains valid and unlawful; even after the recent Constitutional Court judgement that grants individuals the right to cultivate/possess and use cannabis in “private.”
This judgement does not mean that an employee now has a “right” to report for duty under the influence of marijuana, having smoked at home prior to commencing work. Nor can the employee insist on a right to have a marijuana smoke break during his lunch, even if that is outside the workplace.
The effects of smoking marijuana can last up to 3 hours and remain detectable in the bloodstream for up to 30 days after consumption.
An employer has the right to prevent an employee from entering the workplace with cannabis in his / her possession or if the employer suspects that the employee smoked marijuana prior to reporting for duty and is still under its influence.
It is the employer’s obligation to provide safe working conditions for its employees. The Constitutional Court judgement does not affect the applicable provisions of the Occupational Health and Safety Act.
Should an employee undergo a blood test in the workplace administered by a professional authorised person on behalf of the employer, and it is found that the employee’s blood contains traces of cannabis, the employer may suspend the employee (in writing) and take disciplinary steps against that employee. The employee could be dismissed.