It’s well known that traces of cannabis, and its psycho-active element, THC, can remain in the body for up to a month after consumption. In other words, for an employee to test positive for cannabis does not necessarily mean they cannot do their job.

This reality is now catching up with labour law, with the general advice from legal practitioners being that employers seeking to take action against employees who test positive for work, need to be aware of:

• The Cannabis for Private Purposes Act of 2024 (yet to be gazetted into law) allows for adult consumption of cannabis at home or in other private places, and that cannabis may be detected in the body weeks later;

• The Labour Court ruling earlier this year in favour of Barloworld employee, medical cannabis patient Bernadette Enever, who received R1 million in compensation for being wrongly fired for testing positive for cannabis.

One of the sectors that will most be affected by the new legislation is mining. Once the bedrock of the South African economy, mining still accounts for the livelihood of millions of people. According to Stats SA's Q2 2024 report, employment in the mining sector stood at  472,153 in the second quarter (Q2) of 2024. Many mineworkers are from Lesotho and over generations have established a cannabis distribution network and culture in the South African mining industry. 

Law firm Webber Wentzel has examined the impact cannabis reform will have on mine site health and safety, and the implications for substance abuse policies.

The company’s  employment law specialist, Lizle Louw, suggests that cannabis be treated in the same way as alcohol on mine sites, with a zero-tolerance approach that denies access of workers on to the site if they test positive for cannabis.

The following is republished from Louw’s interview with Mining Weekly’s Marleny Arnoldi on 18 September 2024, in which she said mines needed to revisit their ‘intoxication policies’

Louw said, mining companies will need to decide whether and how to distinguish between actively intoxicated persons, whose working ability would be influenced by cannabis, and those who may have traces of cannabis in their system from weekend or leave-time use, for example.

She explained that a zero-tolerance approach against actual intoxication is still possible but must be based on rational and justifiable risk-based assessments.

She added that policies and testing needed to distinguish between “testing for the presence of cannabis or current, actual intoxication and consider whether zero tolerance can be sustained or whether other statutory limits can be applied.”

Policies related to cannabis also need to be consistent with other intoxication rules, Louw stressed.

Webber Wentzel occupational health and safety specialist Kate Collier recommends that, in formulating new substance abuse or intoxication policies, as well as testing protocols, mining companies should take into consideration the nature of roles at the workplace and the nature of the workplace overall to determine risk, as well as the overall statutory health and safety requirements that the site has.

She also emphasises the importance of risk-based assessments for a consistent approach to intoxication policies, which should be approved by committees before publishing.