We have recently been doing work with our legal partners around workplace cannabis policies, and it has been a real eye-opener. Whether you use an outsourced HR provider or manage your staff internally, this is one area where it is worth taking a few minutes to review your existing policies. It is far more complex than many employers realise.
South Africa has roughly 17 million employed people. While cannabis usage statistics are less precise, estimates prior to legislative changes suggested around 2.5 million cannabis users nationally. Statistically, most employers will eventually have to deal with cannabis-related issues in the workplace.
Many assume the solution is simple.
“I can just include drug testing in employment contracts and discipline employees who fail.”
Unfortunately, recent changes to the law do not make it that straightforward.
Cannabis is “legal”; but what does that mean for employers?
Since cannabis was decriminalised for private use and later regulated under the Cannabis for Private Purposes Act, many employers have discovered that their workplace substance abuse policies have not kept pace with the law.
This raises uncomfortable but necessary questions:
- If an employee tests positive for cannabis, can you dismiss them?
- Does a zero-tolerance policy still hold legal weight?
- How do you balance employee rights with workplace safety?
If your answer feels obvious, it may be worth pausing. Courts and the CCMA have shown that cannabis-related cases are highly context-specific.
Is a zero-tolerance cannabis policy still enforceable?
Cannabis is now both socially and legally more accepted than it was a few years ago. That does not mean employers must tolerate impaired employees at work. However, the legal risk arises when policy expectations and legal reality diverge.
Zero-tolerance policies are not automatically unlawful, but they are no longer bulletproof.
Context matters:
- Safety-critical environments (such as mining, construction, transport and heavy machinery) are more likely to justify strict zero-tolerance rules.
- Office-based or low-risk environments require a more nuanced approach.
A major complication is that THC remains detectable long after impairment has worn off. Unlike alcohol, a positive test does not necessarily indicate that an employee is currently impaired or unable to work safely.
Presence vs impairment: what does your policy actually regulate?
The key legal shift employers need to understand is this:
The question is no longer “Did the employee test positive?”
It is increasingly “Was the employee impaired at work or did they pose a real safety risk?”
Legally defensible workplace cannabis policies now focus on:
- Actual impairment, not historical or private use
- Role-based risk, rather than blanket rules
- Observable behaviour, not assumptions
- Consistent and fair enforcement, not automatic discipline
Employers who rely solely on drug testing without clearly defining impairment risk exposing themselves to disputes and unfair dismissal claims.
Why outdated cannabis policies expose employers to real risk
Drug testing can backfire when:
- Policies do not clearly explain how results are interpreted
- Managers are not trained to identify impairment
- Testing is used as a shortcut for performance management
- Employees are not informed of their rights and obligations
In these cases, employers may find themselves defending decisions that were procedurally flawed, even if safety concerns were genuine.
How to update your workplace cannabis policy
If your substance abuse policy has not been reviewed recently, now is the time. A few practical steps can significantly reduce risk:
Be explicit
Address cannabis directly. Vague references to “drugs” invite legal disputes.
Separate presence from impairment
A positive test alone should not automatically trigger discipline in non-safety-sensitive roles.
Assess role-based risk
Identify which positions justify stricter controls and document the reasoning.
Train line managers
They must understand how to recognise impairment and manage incidents properly.
Review testing methods
Over-reliance on urine or blood tests without behavioural evidence can be legally risky.
Respect POPIA requirements
Drug test results are sensitive personal information and must be handled lawfully.
Feeling ‘green’ about your workplace cannabis policy?
You are not alone. Cannabis law has evolved, and many employer policies have not kept up.
If you would like support reviewing or updating your workplace cannabis and alcohol policies, our team works closely with legal partners to help employers develop clear, compliant and practical frameworks.
Get in touch with us to ensure your policies protect both your people and your business, and give yourself the peace of mind to focus on running your organisation.