This article about Cannabis testing in the workplace was originally published on 30 Jun 2017 and was updated on 28 June 2020.
Since the announcement of the Constitutional Court’s privacy ruling in September 2018, much has changed – and much has remained the same. We are allowed to cultivate and use Cannabis as adults in private spaces. Yet, we are still being persecuted by the police. The harassment does not end there though, from nosy, spiteful neighbours to draconian workplace policies, Cannabis users in South Africa is still not having an easy time. Cannabis testing in the workplace is still a commonplace practice and we often get asked how this is still legal.
Shortly following the new ruling, a few employment cases were disputed that related to Cannabis testing and being fired. A specific case in April 2019 was a tough one – an employee who operates heavy machinery on a daily basis was fired for testing positive. The arbitrator had found that the dismissal was fair.
Jules explains in an article following the Western Cape’s initial privacy ruling in 2017, what you should be on the lookout for.
More and more this question is cropping up in our inbox. There isn’t really a cut and dry answer either. The situation is far more complex than the cut and dry, pass or fail of a urine test. You may fail a test but that test is indicative of THC in your system, not whether you were actually under the influence. That weed cookie you had at a party three weeks ago is going to show up and you’ll test positive.
So, can your employer randomly test you for illicit drugs? Is Cannabis testing allowed?
The short answer is yes, they can, but only if they have a substance abuse policy in place. Maybe there is a clause in the contract you signed? At the time you were hell bent on getting the job, you signed the dotted line whether you agreed with their testing policies or not.
Some companies don’t have a drug testing policy clause within their contract agreements, but your company still has a policy in place.
Ask to see it. It might be an addendum to your contract. Did you ever sign it?
The Western Cape High Court Dagga judgement in March 2017 ruled that persons may grow and use weed in the privacy of their homes. It’s a judgement, not the law (yet). IF you use weed at home and then face Cannabis testing at work – work trumps the WCHC judgement.
However, there are pertinent questions you must ask before a random test:
What substance are you being tested for?
Why were you called in specifically. If it’s ‘random’, how was your name chosen?
Are the tests professional lab tests or a random cheap DIY from a pharmacy?
Does a company employee test or is there an outside test company involved (very important so ensure there is no bias.)
There are numerous OTC meds and prescriptions that can easily affect your test results. Has your employer taken this into account?
You may argue that it is your body, and your right to ingest whatever you wish to at the weekend (or on a Tuesday night bender). This may be so, but all it takes is a bumper bashing in a company delivery van the next day, and a quick post crash blood test for the insurance and BAM, you’ve got an illicit drug in your system (whether you are impaired or not). The insurance now becomes your problem, not your employer’s.
It’s called accountability. Most of the time (in our opinion) your employer cares little about what you consume over the weekend, but they are quite within their rights to protect their interests. Cannabis testing is one way they can attempt to do this.
A lot of the time, employers only use the threat of drug testing to change people’s habits. Testing, especially multi substance testing, is expensive so the threat of a drug test is usually enough for employees to use. It is also worth pointing out, your employer simply cannot show you the door because you failed a drug test. There are employment protocols in place. You cannot be singled out and arbitrarily tested without reason. At this point, your employer may well be liable if the correct procedures haven’t been adhered to and your case at the CCMA may well cost your company a surprising amount of time and money.
Read the small print of your contact. Ask to see your company’s drug testing policy and if you are to be tested – ensure the test is being done by an outside company with a legit test kit.
Right now the bottom line is, if you smoke weed in the evenings, you run the risk of testing positive at work and if your company has relevant and up to date policies in place – it’s you that will lose out.
That’s the problem with a drug test. It gives a simple yes or no answer to an extremely complex set of parameters and circumstances but, hopefully, your employer will realise and understand this.
KNOW YOUR RIGHTS!