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Flying high – Weed in the workplace

By Jose Jorge, Director and Steven Adams, Associate, Employment, Cliffe Dekker Hofmeyr

 

In the last few weeks, several news outlets have suggested that the use of cannabis is now legal. Before employees are emboldened to light up, it’s important to note that this isn’t what the High Court found.

 

In Prince v Minister of Justice and Constitutional Development and Others [2017] ZAWCHC 30, the Western Cape High Court reasoned that the “blunt” instrument of criminal law as employed under the current legislation is disproportionate to the harms that the legislation seeks to curb insofar as the personal use and consumption of cannabis is concerned.

 

The Court declared parts of the Drugs and Drug Trafficking Act, No 140 of 1992 and the Medicines and Related Substances Control Act, No 101 of 1965 inconsistent with the Constitution to the extent that they encroach upon private use and consumption of cannabis for personal purposes. The Court suspended its declaration of invalidity for two years to allow Parliament to correct the defects in the legislation.

 

If Parliament amends the relevant legislation to give effect to the Prince judgment, employers may have to reconsider how, in the workplace, they deal with the effects of personal cannabis use.

 

Most employers have policies dealing with alcohol and drug abuse. Depending on the industry and the nature of the employees’ duties, the employer’s approach to alcohol abuse and the sanction imposed may vary. Employers, however, generally adopt a zero-tolerance approach to the use of illegal drugs.

 

Testing for alcohol is relatively easy. Breathalysers, although not uncontroversial, provide an efficient and quick means to estimate blood alcohol levels through the analysis of a person’s breath. This allows an employer a fairly accurate view of the probable physical and mental impairment of the employee based on the blood alcohol concentration.

 

If the personal use of cannabis is legalised, it is likely that employees who previously feared the legal consequences of partaking may now do so. This may lead to an increasing focus on cannabis use and its impact on the workplace.

 

There are a number of ways to test for cannabis. These include urine, hair and blood analysis. Traces of cannabis can be detected for up to 10 days to six months after use. In contrast, alcohol may leave the bloodstream within hours after consumption.

 

Unlike alcohol, the effects of cannabis on an employee’s ability to perform his or her duties are less well known and the tests are likely to be more complicated and time-consuming. It appears that the tests for cannabis also cannot accurately determine the degree of impairment of the employee to do his or her job.

 

A more nuanced approached in the workplace will be required for dealing with the use of cannabis than that for alcohol. An employee that has a “drag” in the morning before coming to work may be able to function optimally at work even though technically they may be under the influence. An employee that legally used cannabis on a Friday evening is likely to show traces of the drug if tested at work on a Monday, even though no longer under the influence, and unlikely to be impaired.

 

As is apparent from the examples provided above, it may be difficult for an employer to justify a dismissal in such circumstances. While an employer may prohibit cannabis use while at work, it would be difficult to police the legal use of a drug that may or may not have an effect in the workplace.

 

As with alcohol abuse, an employer may take disciplinary action against an employee, without a test, where the effects of cannabis are clearly observable and it is clear that the employee is too impaired to do their job or are a risk to other employees in the workplace.

 

Any policy aimed at addressing specifically the use of cannabis and its effects in the workplace, would have to take into account factors such as consent to testing for cannabis, the manner of testing, the nature of the employer’s business, the employee’s duties, the circumstances in which the offence was committed, the observable extent of the impairment, and the employee’s history of cannabis or other drug-related offences at work.

 

Whatever test an employer decides to apply it must comply with s7 of the Employment Equity Act, No 55 of 1998. In terms of s7, the test must be permitted or required by law, or must be justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. Any employer wishing to institute random testing for cannabis would have to ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.

 

Employers should be careful to distinguish between misconduct and incapacity when it comes to cannabis use. Where an employee can show an addiction to cannabis, the employer will have to consider whether counselling and rehabilitation may be appropriate steps. This would require that the employer provide assistance to the employee in terms of item 10(3) of the Code of Good Practice: Dismissals.

 

The fact that cannabis may in future be used by an employee at home does necessarily mean that the employee is entitled to come to work under the influence or with his or her ability to work impaired. The employee is still required to adhere to the employer’s workplace rules and policies. The difficulty employers will face with employees using cannabis is the complexities around proving that an employee’s ability to work was impaired or that the employee was under the under the influence whilst at work.

 

The Occupational Health and Safety implications of the Prince judgment will be addressed in another alert by Fiona Leppan, a Director in our Employment law practice area.

 

For more information contact Jose Jorge at [email protected] or Steven Adams at [email protected]

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

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