Page 133 - Daggabay Magazine Issue 9

Fields of Green for ALL • Collectively Reforming South African Cannabis Laws
situation. It is also possible for an employee to eat
a poppy seed muffin on the way to work and test
positive for opiates, in the same way someone
being prescribed Adderall for their ADHD could
test positive for methamphetamine, or taking a
codeine for a headache and testing positive for
opiates. 39
As background – and embedded in the principle
of policy coherence – it is important to note that
testing for alcohol and other substances is allowed
by the Basic Conditions of Employment Act
(BCEA) and the Occupational Health and Safety
40
Act (OHSA). As it is for alcohol today, each industry
sector has different requirements. If minimum BDC
(Blood Drug Concentration) levels for operating
a vehicle have managed to be established on the
basis of evidence, it stands to reason that these
levels must be used for testing in the workplace.
Cannabis-related offences cannot have worse
penalties under labour legislation than those of
more potentially harmful drugs such as tobacco,
alcohol and non prescribed SSRIs. However, our
emails over the years indicate that, in the case
of alcohol, an employer may be more inclined to
ensure an employee seeks help or is assisted to
seek help before a letter of termination is written.
Cannabis users fare much worse.
Dismissal on the spot is common and employees
have no recourse. This was the case of four
Durban employees summarily fired for failing a
drug test in 2017. They contested their dismissal
41
with the South African employment Commission
for Conciliation Mediation & Arbitration (CCMA),
and surprisingly for many, the CCMA upheld the
judgement. This case was the first of its kind
to be judged since the Constitutional Court
ruling. Constitutional Law experts considered
the judgement unfair and highlighted how little
the drug testing industry, employers and the
CCMA knew about how Cannabis metabolised in
the human body. After all, since 1992 when the
42
Drug Laws were last amended, there has been a
wealth of scientific study on the subject. We now
know how cannabinoids interact with the human
endocannabinoid system. Unfortunately, the law
always takes time to reflect this knowledge. It is
imperative that bodies such as the CCMA start
reassessing what they know about the Cannabis
plant. The days of “dangerous, dependence-
producing substance with no medical application”
are over.
CANNABIS IN SOUTH AFRICA • THE PEOPLE’S PLANT • A Full-Spectrum Manifesto For Policy Reform 89
Urinalysis test devices, currently the cheapest and
most popular method of drug testing in South
Africa, can only be used to indicate the mere
presence of a substance in a person’s body, not the
time scale within which the drug was last used.
Urinalysis does not indicate if the person was under
the effects of the substance screened. Studies have
shown that Cannabis compounds can be present
in the human system for a maximum period
of between 25 and 77 days. Therefore, under
43
proposed legalisation of Cannabis in South Africa,
Urinalysis should not be used for drug testing at
work. Dismissing someone as a result of Urinalysis
would be a gross violation of the person’s rights. A
saliva test can prove if Cannabis was used within
the previous 24 hours, but is an inaccurate form of
drug screening for Cannabis, as is hair testing. 45
44
In any situation, to maintain policy coherence, no
person should ever be dismissed for a positive
result for Cannabis in their system without a
registered BDC test. Only BDC results of over 5
nanograms of THC per milliliter of blood may be
grounds for dismissal, and only if it is proven, in
addition, that the person was impaired to the
extent that he/she was unable to do their job.
Canada was the first G20 country to fully legalise
the use of the plant in 2017 and the Canadian
government has attempted to put some sort of
figure on impairment. This has only resulted in
a range of policies and opinions from individual
States in the Federation. 46
The evidence as to whether workplace drug testing
in general is a cost-effective exercise is still open to
debate. Evidence is scant and studies contested.
Drug testing is based on the premise that testing
should identify the users and therefore find the
ones who are impared, which will ensure the
continued safety of the workplace. Workplace
testing is only likely to find the frequent users,
not the majority of occasional, infrequent users.
A test is only an indication of prior drug use, and
the relationship concerning drug use, cognition,
psychomotor performance and workplace safety
is a complex issue, not a yes/no answer. 47
An employer wishing to do testing in the
workplace must establish, in advance, a substance-
abuse policy clearly stipulating how and when
testing will take place, and the substance abuse
policy must be agreed upon by all staff. The
employer may in no way discriminate against
any person that uses Cannabis, for any reason.