by Richard Malkin

The Long and Weedy Road

Can your company afford the risks associated with poor policy implementation?

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The next couple of years are set to be fraught with uncertainty and indecision as South African law is re-written to accommodate the new legalisation of legal cannabis. Can your company afford the risks associated with poor policy implementation?

Why should September 2018 to September 2020 worry anyone that uses our country’s roads?

Since Judge Zondo delivered the landmark finding that it’s an adult’s constitutional right to use cannabis (dagga) in private, we now have no control over when and where someone might be under the influence of THC. So, when an adult legally smokes and then climbs into a vehicle to drive on our public roads, while they may be exercising their right our constitutional right to safety could well be jeopardised. We’re in a place where two of our rights are in direct contradiction of one another.

While we’re all well aware of the laws in place that define how many glasses of wine or bottles of beer we’re allowed before we can safely climb behind a steering wheel, currently there is no law preventing a person under the influence of dagga from operating a vehicle on a public road. We have two years of waiting for a Parliamentary ruling that will implement a law that defines what legal levels of dagga in drivers may be.

The worrying part about this is that it’s not a criminal offence if a driver, under the influence of cannabis, causes an accident. Serious injury or even death may tragically occur as a result of their impaired concentration but the clear legal boundaries have yet to be put into place. The situation then becomes even more complex as the court will work to prove negligence as a result of driving under the influence.

However, there is another channel where one can seek recourse. When acting through the common law and the civil court, you’re free open a case of negligence and sue for associated damages. This could possibly provide enough of a deterrence to prevent people from driving under the influence of cannabis.

A primary concern of yours involves truck drivers and transport companies. How do we navigate the weedy road ahead in this particular industry? Luckily the Occupational Health and Safety Act helps us set these parameters. You’re required to create a safe environment for your staff and your internal policies will help define this.

This is where managers are needed to step in as a matter of urgency. Your current policies likely list cannabis as an illegal substance. Policies need to be redefined as this is no longer true to the law, they rather need to state that no operation of machinery is allowed whilst under the influence of cannabis.

So how do you determine if someone is under the influence? This is where things get complicated.

Testing for cannabis is not a simple one, there’s no simple blowing into a breathalyser. The test is also not definitive as it measures the breakdown of THC (present in cannabis) which can be traceable for up to a week post exposure.

Therefor a confirmatory test must be conducted, this is challenging for four primary reasons:

Strict policy adherence

The test must be conducted precisely and under controlled conditions. The procedure must be defined in your company’s policy and signed consent has to be granted by the person being tested. In fact, all employees should be made aware of this updated policy prior to implementation, ensuring that everyone clearly understands the process. A chain of custody must also be established, accounting for the sample from the moment it’s taken to the lab where it is tested.

Test complexity

Testing for cannabis involves what’s known as a spectrophotometric test. This involves measuring the empirical value of the substance so that the active and inactive ingredients can be measured against international standards. This helps determine if the substance is above acceptable levels. It’s not a simple test, in fact there really aren’t a lot of labs that are able to run these tests every day.

Waiting periods

Results are not delivered on the same day, as a result the employee will have to be suspended until the test is completed. This could be on full pay depending on your policies.

High cost

A cannabis test is by no means a cheap process. With current technology, a test is an investment rather than a small throwaway expense.

There’s no escaping the fact that this change of law has a large impact on the trucking industry, as well as individual companies. The most important takeaway is that you must re-look at your policies and procedures or else you could be liable as an employee in the event of tragedy. Ensure your policies are reviewed and water tight; ensure that your employees are trained on testing.

A process that never goes amiss is the practise of educating your employees on the dangers of substance abuse. In the stressed times we live in, we in the Employee Wellness industry are seeing a strong increase in the abuse of legal and illegal substances. There might even be a resurgence of cannabis use now that dagga has been decriminalised and is becoming socially acceptable. Time will tell.

Until we have concrete laws in place by September 2020, it’s worth staying alert and being extra vigilant on our roads, no matter if you drive a chassis cab or a convertible.

Doctor Richard Malkin of Workforce Healthcare

Malkin is the Managing Director of Workforce Healthcare, a provider of integrated physical and psycho-social wellness solutions to the workplace. Doctor Malkin has extensive experience in Workplace Healthcare and has recently become a go-to expert advisor in the case of legalised cannabis within South Africa.

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