Navigating the new cannabis laws

As an employer, you might be concerned about what the new cannabis laws will mean for your workplace. Here’s what you need to know.

In September this year, cannabis effectively became legal for personal use in South Africa, prompting a host of questions from employers about the effect of the law on workplace policies and disciplinary codes. Does this mean employees can now use cannabis before or even during work hours? Can they keep it in their desk drawers? And are employers within their rights to prohibit it?

The new law

After a Cape High Court judgement in 2017 declared that citizens have the right to cultivate, possess and use cannabis in their private dwelling, the matter was referred to the Constitutional Court, which then unanimously confirmed the judgement.
The Constitutional Court, however, went a step further and did not limit the use of cannabis to private dwellings, but said citizens may consume cannabis “in private” – implying that its use would be legal outside one’s house, as long as it is not in public.
Importantly, the new law is not in effect yet. It has been suspended for a period of two years in order to give parliament time to make the necessary amendments to affected laws. Some key points that will need to be ironed out before the law is amended include what products should be regulated, how non-users will be protected, what to do about the existing criminal market, and how far privacy extends.

Making it work

No matter the details of the new laws, cannabis remains an intoxicating substance and, as such, its use in the workplace is subject to the conditions of other legislation. Three conditions, in particular, apply:

>The Occupational Health and Safety Act of 1993 stipulates that employers may not give any person who is or who appears to be under the influence of an intoxicating substance access to the workplace.

>Under the same act, an employer may not allow any person to have intoxicating substances in their possession in the workplace.
>The Compensation for Injuries and Diseases Act also states that an employee will not be covered for “serious and wilful misconduct”, including being under the influence of intoxicating substances.
Employers can use these stipulations to amend company policies where needed.

Workplace policy how-to?

In essence, the new laws should not have much of an effect on standard workplace policies. Most employers already have policies in place that deal with alcohol and drug abuse, but it may be worthwhile to ensure that they adequately deal with cannabis use. Some points to consider include:

  • Smoking cannabis at the workplace should be prohibited as it is a public space and non-consenting employees will be exposed.
  • The use of cannabis (or any intoxicating substances, including other drugs and alcohol) whilst at work will have an impact on the conduct or performance standards of the employee – both of which can constitute a dismissible offence.
  • It’s important to note that cannabis use can affect the body for hours and, as such, its use should also be prohibited in the hours before work.
  • If employees are found to use, possess or cultivate cannabis in the workplace, the employer may take disciplinary action against them.



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