Recent research provides a stepping stone for cannabis testing in the workplace, and a solution for South African employers in response to the longstanding issue of workplace drug testing.
In post-decriminalisation South Africa, employees are permitted to use cannabis for private purposes but may face disciplinary action at work for testing positive. Most notably, the issue emanates from the urine testing system, often used by South African employers. Urinalysis has the fundamental flaw of detecting inaccurate cannabis impairment.
Although the 2018 groundbreaking judgment of the apex Court in Minister of Justice & Constitutional Development v Prince, was good news for cannabis users, the implications of drug testing are far-reaching.
The aftermath of cannabis decriminalisation was followed by a series of dismissals where employees tested positive through the use of the urine testing methodology, despite their guaranteed constitutional right to privacy, which accepts the use of cannabis in private.
For instance, urine testing which is widely used, has the fundamental flaw of detecting cannabis that was used days or weeks prior to the work occasion. Meaning if someone smokes cannabis on a Friday night at home, and undergoes cannabis screening at work two days later, the results thereof will reflect a positive test, although such a person is not ‘stoned’ at the time of the test, nor is his or her capacity to perform duties impaired to such an extent that workplace safety is compromised.
The question of whether such an employee may be dismissed became a controversial topic after the Prince judgment. However, in another ground-breaking judgment of the Labour Appeal Court in Enever v Barloworld, the court ruled that the urine testing methodology used by the employer was irrational, and discriminatory. Thus, the court ruled that a dismissal for testing positive for cannabis was automatically unfair, and ordered reinstatement of the employee.
The court reasoned that urine shows past drug consumption. Additionally, cannabis and alcohol users are not treated equally, which is in fact an unfair discrimination. While alcohol users are permitted to consume the substance while driving (except where the levels of intoxication exceed the prescribed limits), this was not the case for cannabis users. In other words, while alcohol intoxication is a matter of degree, the levels of cannabis impairment were not interpreted according to cut-off levels.
Thus, the Enever judgment recommended that employers develop and implement rational drug testing systems.
The recent study I conducted together with Professor Marthinus van Staden seeks to resolve the competing interests between employers and employees. On the one hand, employers have the duty to ensure workplace safety through putting in place drug testing systems, while on the other hand, employees have a constitutional right to use cannabis for private purposes.
Notably, urine testing does not strike a fair balance between the interests of employers and employees because of the fundamental flaw pertaining to the window period.
South African employers may shift from urine to saliva drug testing as a rational testing system for workplaces. Employers’ adoption of a saliva testing system would be fairer because it shows current drug impairment, such as a substance taken a few hours before the screening.
Where safety is the aim, then drug testing policy should focus on accurate impairment, that is, one which detects cannabis at the time of the test – the saliva testing method does have this advantage.
Such conclusions are drawn from countries such as Canada, Australia and New Zealand. Although saliva testing is recommended as a better indicator of drug impairment, it draws further findings that the saliva testing systems may lead to incorrect results if not interpreted with caution.
The research I conducted reads as follows:
“The rationality of saliva testing is further supported by its adoption in various jurisdictions. For instance, the Joint Australian/New Zealand Standard for oral fluid testing provides clear guidelines for interpreting results based on specific cut-off concentrations (Australian/New Zeal and Joint Standard ‘Procedure for Specimen Collection and the Detection and Quantification of Drugs in Oral Fluid’ AS/NZS 4760:2019).
This standardised approach enhances the reliability and fairness of the testing process. With regard to saliva testing, section 1.3.17 of the Joint Standard defines a ‘confirmed positive test’ as the drug-testing outcome at or above the cut-off concentration. On the other hand, ‘cut-off concentration’ is defined under section 1.3.19 as ‘[a] value at or above which the drug and/or metabolite is deemed to be a confirmed positive and below which the drug and/or metabolite is deemed to be a negative.”
Expressed differently, the Joint Standard provides that a drug test is deemed harmful where such a result is above the relevant cut-off concentration or limit of reporting. This is stipulated in section four, which explains the ‘interpretation of the result’. Table 1 below provides a cut-off concentration limit of 15 ng/mL for cannabis tests through a ‘laboratory’. If the specimen contains tetrahydrocannabinol (THC) below 15 ng/mL, the employee is deemed to have tested negative. According to scientific experts, levels below 15 ng/mL of cannabis metabolites do not impair the employee’s capacity to undertake a job. On the other end of the spectrum, an oral drug test above the 15 ng/mL threshold is deemed positive.”
The main point is that cannabis impairment is a matter of ‘degree’ and the level of traces in cannabis must be interpreted as such. When using a laboratory, an employee with traces of cannabis in saliva below 15ng should be deemed negative. An employee with traces of cannabis at or above 15ng should be declared to have tested positive. The above standards are being verified through scientific studies, and have been approved by the Australian government and courts. Perhaps, South African employers may adopt drug testing policies that comply with these standards.
The saliva testing system has the advantage of protecting the right of employees to smoke in private, while maintaining the employers’ interests of ensuring workplace safety through drug testing. The STEALTH Cube – six panel saliva test (a box of 25) is the recommended testing tool verified by the Australian/New Zealand Standard.
In addition to saliva screening, it is important to consider other circumstantial factors that may indicate cannabis impairment beyond drug testing systems. For a fairer assessment, observable signs of impairment, such as co-ordination, speech and behaviour, may be taken into cognisance.
Fairer drug testing policies are important to prevent unfair dismissals, because job security is foundational, especially with the unemployment rate on the rise in South Africa. To achieve this aim, the author is driving a national movement to influence South African employers to adopt rational drug testing systems through the review and drafting of policies.
· This article is an Opinion piece, which presents the writer’s personal point of view.
*The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of KwaZulu-Natal.
· Mr Thato Lentsoe, is a lecturer at the University of KwaZulu Natal’s (UKZN) School of Law, where he teaches Labour Law, Constitutional Law and Human Rights. He is currently pursuing a PhD in Labour Law at Wits University.