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Employment Law And Cannabis In South Africa

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An employment case over personal (and medical use) has caught the attention of a country in transition on cannabis reform

The issue of cannabis use and employment is a sticky one. For Americans old enough to remember it, mandatory drug testing for most kinds of employment became a reality in the late eighties and early nineties. Cannabis users, because of the length of time the metabolites stay in the human body, were affected the most.

Now, as the White House is criticized for subjecting its staff to zero-tolerance policies, but the states are moving forward on eliminating this kind of discrimination, the topic is starting to show up elsewhere and in jurisdictions where cannabis reform is moving forward on a federal level.

In South Africa, a woman has just lost a case before a Johannesburg Labour Court on the claim that she was discriminated against and fired illegally for using cannabis while not on the job. She worked in an administrative office position from which she was fired after she had repeatedly tested positive for use – albeit not during working hours. She also testified that she had used cannabis for both medical and spiritual reasons.

The court cited her lack of medical evidence as cause to deny her a discrimination claim as well as the existing zero-tolerance policy of the employer. More tellingly, however, the judge also ruled that to have ruled in her favour would have created a precedent that would impact the company unfairly.

Medical Use, Employment Policies and Reform

The timing of this case is certainly interesting, given the fact that South Africa is moving ahead with at least medical reform – and in a very big way. Beyond this, the country’s Supreme Court has ruled that personal use cannot be criminalized. This would, one would assume, also include negative repercussions in other areas of life – and labour law is also of course considered to fall under the civil rights section of every cannon of written law.

As a result, it may well become a bellwether case.

The ability to find a prescribing doctor in South Africa, as it is elsewhere, remains not only difficult but expensive. Yet courts (everywhere cannabis laws are reforming) are only slowly coming to this understanding.

The unwillingness in this case to set a precedent – and further under such conditions – seems destined to make sure that this will indeed be a case that is remembered. Namely as one which penalized someone for medical use – up to and including the loss of long-term employment.

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