Mining industry faces dilemma after new dagga law

The 2018 Constitutional Court judgment legalising cannabis for private use has left the mining industry with a policy shift conundrum as far as testing employees for traces of the drug is concerned: whether to invoke a blanket zero tolerance approach, or relax this in less safety sensitive areas.

The judgment handed down by Deputy Chief Justice Raymond Zondo has made it lawful to possess and cultivate dagga privately.

Employment law specialists Lizle Louw and Shane Johnson have maintained that employers should review policy to adopt zero tolerance in safety-sensitive areas, which included mines.

“The judgment has raised critical questions around medical testing in the workplace, especially at mines, where employees have to operate complex machinery – something that may endanger their lives and those of others if their faculties are impaired,” said Louw and Johnson.

“Cannabis can negatively impact on an employee’s occupational capacity in many ways. These include performing tasks slower, poorly and finding difficulty in taking instructions.

“Traces of cannabis can be found in the human body for up to six months after use, making it challenging to determine the extent of impairment after such a long time.

“If employees test positive for cannabis, they are not necessarily still influenced by it and may not present a safety risk. If mining companies simply apply the zero tolerance policy – as with alcohol – to cannabis testing, employees may argue that they acted within the constraints of the cannabis judgment.

“They may argue that they are not under the influence of cannabis and not a safety risk. They may say that they are treated unfairly in not being allowed to work.”

Consumption of cannabis for medical reasons might also pose a challenge to employers.

While it could not be established how widespread the use of cannabis is in the mining industry, another challenge for South Africa is the availability of a cannabis testing breathalyser, said to be available in other countries.

Experts have argued that when cannabis is smoked:

• Impairment started immediately and lasted between six to eight hours.
• The duration of impairment lasted longer when there were higher levels of tetrahydrocannabinol in the cannabis used.
• Other factors like lack of sleep, use of other medication, alcohol consumption and other medical conditions could increase the duration and level of impairment.

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