The Constitutional Court’s recent groundbreaking judgment on cannabis consumption and cultivation for private use might have been widely hailed across the country – but there are major potential pitfalls for companies.
The court effectively decriminalised the private or recreational use of cannabis, giving parliament two years from September to draft and enact laws that will regulate how much cannabis can be grown at home; how much can be possessed for private use and how much can be smoked before a person’s mind is impaired too much to drive a car or operate heavy machinery at work for example.
In the interim, it’s up to the police to use their discretion. In many cases, it’s becoming a bit of a free-for-all because there are many more high priority crimes for the police to pursue, investigate and prosecute.
In the broader scheme of things, that’s all well and good but what about the workplace, where a CEO not only leads the way but also carries the responsibility for your employees.
If cannabis is decriminalised, how do you stop it? Can you stop it?
The simple answer is yes.
Obviously, you shouldn’t do it unilaterally, although some will try, but rather, as a progressive CEO or C-suite member, one should sit down with employee representatives and union shop stewards and discuss the issue.
The Labour Relations Act underscores the importance of collective agreements and these begin at a policy level, filling in the gaps left by legislation which by definition only prescribes a minimum standard below which you cannot go for fear of being in breach of the law and sanctioned.
There’s a lot of things that these workplace consultative forums can decide on: policies on smoking in the workplace, clothing regulations and even pension funds. It’s critical that they do, because without a proper policy – or in this specific case an amended disciplinary code that covers as broad a range of possible infractions, it becomes extremely complex to maintain order; especially where the breach of the rule is gross.
You can’t dismiss a person unless they have contravened a rule regulating conduct in the workplace.
But the requirement goes further in that the rule not only has to exist on the code, it has to be valid and reasonable and it has to have been consistently applied.
In the case of cannabis, something that was once banned is now legal – but unregulated. There’s nothing to stop an employee smoking a joint before coming to work, or claiming that they can now finally perform their religious observations without being persecuted.
But there’s also the reality that cannabis is a recreational drug second only to alcohol and tobacco, both of which are tightly regulated in the workplace and in public.
There are huge risks associated with a laissez-faire approach to cannabis consumption by staff during office hours, very similar in fact to alcohol consumption during office hours.
There will be an effect on productivity, there could be – through over-indulgence – the potential for reputational damage precisely as there is when staff drink too much and then engage with clients.
There’s also a potential hazard for staff who smoke or ingest cannabis and then operate heavy machinery or drive vehicles.
An associated risk that is as concerning is the liability upon the employer if the practice is allowed in the workplace.
Take work functions, where I work we make it mandatory for staff to use Uber if they are coming to one and intend to drink. Do we do the same for those who want to smoke a joint? And, if we let people drink at a function do we allow others to smoke a joint but then smoke it with the rest of the smokers, given the allied health concerns of secondary smoking?
None of these issues have been teased out following the Constitutional Court’s decision, but that doesn’t lessen the risk on the employer.
We dare not assume that just because something is common sense to us, it will be common sense to those we would like to apply it to.
The truth is, we find ourselves bedevilled by a generation gap where the millennials in particular have a tendency of pushing the envelope in situations where there aren’t express rules prohibiting certain conduct.
Even then, to be honest, that’s no guarantee.
I’ve seen people burn their fingers by not specifying the precise times of work or even exact dates of pay because “the end of the month” doesn’t cut it for them.
I’ve seen a case where a particularly switched on lawyer managed to avoid being dismissed for arriving drunk at work – after being absent on a bender for three days – because it was expressly prohibited.
It’s better to be safe than sorry and policies can provide that assurance. But more than that, by taking the lead, the C-suite executive can be proactive and progressive while ensuring the needs of the company are not in any way prejudiced.
And, there’s no need to reinvent the wheel. The answer is to look at existing company policies and adapt them accordingly.
Cannabis will intersect with both the alcohol policy and the health and safety regulations governing smoking. Times change and so must policies. Thirty years ago, it was commonplace to smoke at your desk or in the factory. These days it’s taboo.
Likewise, some companies had bars on their properties and held functions there too. Then again, 30 years ago apartheid job reservation ensured that certain people couldn’t even get particular jobs depending on their colour, while patriarchal glass ceilings caged women who could.
The fact that cannabis is now legal shows how far we have come, but it needn’t be the end of the world.
You’ve got the opportunity to create a policy with your staff that’s in the spirit of the law but protects the rights of the company. And you’ve got a couple of weeks to do it, before the Christmas party season kicks in.
Lucia Mabasa is managing director of pinpoint one human resources, a Johannesburg-based executive search firm.