Smoke at Home, Test at Work

By |Published On: June 28th, 2020|
Cannabis Can Help South Africa

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.

“Hi there. If I can now smoke weed at home, what happens when my employer wants to drug test me at work?”

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!

Cannabis Can Help South Africa

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SUPPORT THOSE WHO SUPPORT LEGALISATION

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About the Author: Marleen Theunissen

Cannabis lover, spreader of love, hater of injustice and recently-turned activist.

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33 Comments

  1. Delta 9 Envirop July 1, 2017 at 4:24 pm - Reply

    Great article. Very relevant. In our opinion, it might be possible to use the WCHC judgment as a basis to challenge any terminations on contracts signed before the judgment date. It would be a tricky case but certainly winnable.

  2. Percy July 7, 2017 at 3:50 pm - Reply

    I’m representing a case whereby uudismissal was been effected on two employees for been tested positive for cannabis.Having went though your email I can forsee that the c/o had put itself on a big mess.They are going to loose it when we go to ccma.The proper procedure was not been followed and to also point it out it does not have alcohol and drug policy in place.

    • Myrtle Clarke September 4, 2017 at 11:23 am - Reply

      The issue of Cannabis testing in the workplace is very tricky. Please keep us updated as to your progress at the CCMA as we have yet to get a precedent-setting ruling there. Thanks.

  3. Lwazi December 13, 2017 at 11:10 am - Reply

    what about us who smoke on weekends it pretty obvious it will show positive, how do I defend myself on that matter?

    • Myrtle Clarke January 17, 2018 at 9:41 am - Reply

      There is no defense if it states in your employment contract that you will be tested for “drugs”. Sorry!

  4. Sipho December 15, 2017 at 12:48 pm - Reply

    I am very grateful of you guys ,,,,

  5. GTeach January 27, 2018 at 9:08 am - Reply

    How does the glucose tests work? I am thc positive but not being tested for it, instead a glucose sugar test for insurance reasons. Pdp licensce. Any possibility that I can fail this test??

    • Myrtle Clarke January 29, 2018 at 7:52 am - Reply

      It is highly unlikely that they will test for Cannabis in an insurance test. They can only test for one “drug” at a time. They are probably only testing for diabetes / serious illness to prove that you are fit to transport the public. All the best!

  6. GTeach January 29, 2018 at 4:25 pm - Reply

    Thank you very much! :):)

  7. Sarah February 17, 2018 at 10:59 am - Reply

    So my company just took me for a drug test, I smoke weed on occasion, not all the time, and never before or at work, but obviously I will still test positive for this. I informed them before the test that I smoke weed, and they said they weren’t looking for that, but for narcotics, which I don’t do. But I still don’t trust them. I was taken to the doctor for a lab test, but here’s the catch, the company does not have a drug testing policy in our contract at all, they singled me out and did not test anyone else, and technically I did not sign consent for this, but I had to fill in all The forms at the doctor,while under duress and the constant watch of my supervisor, who paid for everything. I am yet to get the results, and see what they do about it, but I would like to know if I have a good ccma case if I decide to take it further? I’d prefer to leave now while the ball in in my court, rather than wait for them to try work me out via another means if that’s what they attempt to do (and I’ve watched them do it to others, so I have good reason to believe that’s what they will do)

    • Myrtle Clarke February 27, 2018 at 7:25 am - Reply

      Yes, you have a very good case at the CCMA and we will be in touch via email.

  8. FRANS February 17, 2018 at 3:09 pm - Reply

    do you know whattype of test discovery uses to test for thc? is it a blood or urine test? thanks

    • Myrtle Clarke February 27, 2018 at 7:25 am - Reply

      Should be a urine test. They can only test for one drug at a time.

  9. Chane July 10, 2018 at 2:57 pm - Reply

    I was arrested for hardcore drugs and my company then said they will do random drug tests on me as i failed for methamphetamine. Im not a smoker and i tested positive for thc and negative for all the other 4 drugs on the 5 panel test. It was a brand new test sealed and opened in front of me so i dont know why. Im now suspended waiting for a disciplinary hearing but i have no case to make as i clearly failed and i dont know why. I can only have a representative from my company and no one will help me. I dont have a copy of my contract. Im to scared to ask as i dont want to look anymore guilty than i already do.

  10. Chanaaz August 5, 2018 at 3:59 pm - Reply

    Just tell me where I can Buy some weed, all this pills Im drinking is just killing me, I would like to try something more natural. TIA

  11. Toni September 25, 2018 at 8:19 pm - Reply

    Seeing that cannabis is legal at this time.. Will the urine testing still be in affect?.. What is my rights regarding being tested after the ConCourt ruling? Will there be other methods of testing?… It seems highly unfair to be tested positive for cannibis and the employee haven’t had a smoke in 24 hours…

    • Jules Stobbs September 26, 2018 at 4:05 pm - Reply

      Still a difficult question to answer. A lot of companies are going on to other things now. If you signed an employment contract and there’s testing in it, then your employer trumps the concourt

  12. Deon Bennett October 22, 2018 at 8:50 pm - Reply

    Comment…I was tested at work Mon pos dagga cannot drive cannot operate heavy machinery but can go back to work I’m a bricklayer wed test again neg I can drive again Told to stop using dagga I’ll be fired I was singled out .Dagga is my use must I allow them to dictate my private live .I feel victimized.

    • Myrtle Clarke October 29, 2018 at 1:51 pm - Reply

      So sorry you have to go through this. There are no precedents where someone has succeeded in challenging workplace testing at the CCMA. Please contact quintin(AT)antidrugalliance.com and he will be able to advise you further.

  13. Blunt October 25, 2018 at 7:31 pm - Reply

    Hi guys first of all thank you so much for what you have done for us. I remember when I attended your Bloem seminar and it all seemed unreal at times but none the less you inspired us to spread the word and about 6 years later weed is legal! I want to know what test will Sanlam conduct for life insurance? Will they be testing for weed and if they do what test will it be, blood or urine? Thank you so much!

    • Myrtle Clarke October 29, 2018 at 1:47 pm - Reply

      Wow, that was our first EVER presentation and we remember it fondly. I think we spoke for too long!!! It was such a good beginning in someone’s garden on a warm evening. If you admit to smoking weed then SANLAM will classify you as a smoker and there will be higher premiums. They will also ask you all sorts of questions that relate to smoking cigarettes and not weed. If you don’t smoke cigarettes it is highly unlikely that they will test you for weed. If they do, it will be a urine test. We went through a big hassle with Liberty Life but they approved the policy in the end. The biggest hassle is they have no idea about Cannabis, nothing WHATSOEVER!

  14. Tasneem December 24, 2018 at 10:10 pm - Reply

    Trust you guys are well. So quick question hopefully you guys can help. My boyfriend works in a call center and recently just got suspended for having few small plastic bags of weed on him in his bag through a search with the security as they try to locate any equipment or weapon or alcohol isn’t brought into work. They did a test n it came out negative but now they saying that his a merchant / dealer when his not which is an accusation made by Human Resources with only proof of the weed bag which is way less than 115grams as per the drugs trafficking act 140 of 1992. he was just keeping for a friend to pick up after work. Now I feel that’s wrong, there’s no proof into saying or proofing his being selling to anyone but they want to believe he does. I’m sure as per my finding online : if cannabis in his or her pocket or handbag! It is in private. It is thus not illegal ”

    Please do reply back before the 28th if possible

  15. Tasneem December 24, 2018 at 10:23 pm - Reply

    My boyfriend works in a call center has been suspended for possession of cannabis. I would like to understand. If he pass the drug test n comes out negative, it is legal to just accuse him of being a dealer just because he had his friend stuff for just 30 mins too keep in his bag n locker. There’s messages on his fone to confirm that someone wanted to buy it, ask him to n told him that he will pick it up. My point of argument is, just because he had weed with him doesn’t make him a dealer n is there proof of accusing him, any witness to confirm that he sold to them a fresh bankie? As per my online finding its less than 115g as per 140 act of 1992 its legal n private use like in their bags or pocket or lockers at work isn’t made public as it’s not in use but kept privately away until someone comes to pick up. Also accusing someone of being a dealer without solid proof apart from the weed possession can they do that is it legal? Please help his hearing is on the way to the 28th of December

  16. Rivash January 21, 2019 at 12:57 pm - Reply

    Good day, Can a company issue an employee a warning for failing a multi drug test which picks up Thc in you system? Even if it’s being a number of days since taking it.This being after south africa is going through the cannabis change.It is said to be OK for an adult to consume and grow in private but how does one deal with work place effects especially if it’s not being taken at work,and not being under the influence at work,just traces of thc in urine? What is one to do?

    • Myrtle Clarke January 21, 2019 at 3:26 pm - Reply

      We wish we could give you a positive answer Rivash 🙁
      Until such time as an employee takes this to the CCMA / Labour Court an employer can write what they want into a contract. At this stage the only way to change things is to get a legal precedent. This will be one of the very first things that we will address once parliament starts discussing the new laws. Until then, there is nothing much we can do, sorry! Please spread the word about our Outcomes document and our cause in general as we need all the support we can get to write the new laws and regulations and get this ready before parliament even starts the process. We are running out of time! https://fieldsofgreenforall.org.za/desired-outcomes/

  17. Audrey October 22, 2020 at 10:21 pm - Reply

    I was tested positive for THC , told the employer that I use this over weekends….I have been diagnosed with severe depression and anxiety and are using chronic medication but don’t use it over weekends when I smoke cannabis. Suddenly after 2 years that I am Working for the company they do a random drug test..obviously tested positive….was honest about my use of the drug, they are fully aware of my ill health…a month earlier they started an investigation for absenteeism base on ill health even though they have all doctors certifies…now they suddenly doing an incapity investigation because they booked me off for 6 weeks due to the positive test of cannabis…in the meeting I told them I had to stop using my medication if I need to detox to test negative in 6 weeks time because even the sister at work told me be8of my chronic medication the cannabis will stay longer in my system….the company sent an altimeter that if indo test positive after the six weeks they will dismissed me enev though they already let me sign a 12mth final warning and let me test for the third time a few minutes after I sign the warning …all three test were done in less than 10 days. Can I take the case to CCMA if they dismissed me…because I know they will use this opportunity to get rid of me

    • Charl Henning November 6, 2020 at 10:14 am - Reply

      When being tested for drugs (urine test, for example) many believe (incorrectly) that the urine is being tested for THC. So, you can’t test for THC that way. THC must be metabolized through the liver, and what is left thereafter is a completely inert chemical called THC-COOH. As it has already been metabolized (used), this chemical really just indicates use of that substance (THC) within a prescribed cut off period. The test cuts off at a certain point and can only really test for levels over 50ng/ml, which means that you could test positive for up to 90 days after last use (taking certain factors into account). Here is the latest case where somebody took their employer to the CCMA and won. Here is the summary of that CCMA court result.

  18. Audrey October 22, 2020 at 10:27 pm - Reply

    Question asked on behalf of a friend who is not aware of this. Afraid it will be held against them

  19. Amanda Ludike January 28, 2021 at 9:31 am - Reply

    kindly advise on this matter……one of our employees was sent for his annual medical surveillance which included a drug test, his results was positive for cannabis, now the medical practitioner refuses to sign his medical report and give it to the company, is she allowed to do that? this person doesn’t work on the mines and he is also not a driver, we are aware that he use cannabis

    • Marleen Theunissen January 29, 2021 at 12:50 pm - Reply

      Hi Amanda,
      We’re happy to see an employer provide support! I’ve passed this on to Charl, who deals with these types of matters. He’ll send you a mail soon!

  20. Akshar August 25, 2021 at 8:22 pm - Reply

    Hi guys, I was a regular smoker and to be honest I violated company procedures, I was recently drug tested at my yearly medical which they have not done the previous 2 years and put on unpaid leave for about 6 weeks, I went and retested and passed my second drug test so 8 returned to work but a week later I get an email saying I have a hearing, why would they do this? Are they firing me?

    • Myrtle Clarke August 26, 2021 at 10:59 am - Reply

      Hi Akshar, Unfortunately this is a common occurrence in SA. By law they cannot fire you for your Cannabis use following the Constitutional Court judgment of 2018. Are you sure they are not just trying to get rid of you? This is a common modus operandi of employers. Please stay in touch to let us know what happened & if you need legal assistance we can put you in touch with the appropriate people. All the best.

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