According to the World Health Organization Covid-19 triggered a 25% increase in the prevalence of anxiety and depression worldwide.  This, in turn, has led to individuals seeking complementary or alternative natural treatments such as the use of cannabis or other hallucinogenic drugs.

Although many employers have historically adopted a zero-tolerance approach to ‘substance abuse’ at the workplace, the adverse effects of mental health conditions at the workplace such as poor work performance, disharmony and low employee morale cannot be ignored.  

The use of alternative treatments for mental health conditions such as the private use of cannabis is no longer ‘taboo’ and employers may be required to overcome the stigma and prejudice customarily associated therewith. 
 
Psilocybin mushrooms, also known as ‘magic mushrooms’, have been legalized in numerous countries including Austria, Bahamas, Brazil, Jamaica and Nepal, certain states in the US.  It is
a psychedelic drug having both sensory and emotional effects on users. The psychedelic effects become detectable approximately 30 – 60 minutes after dosing, lasting between three to six hours.  The use of magic mushrooms in small quantities is known as microdosing and studies have shown significant benefits to mood and mental health (including enhanced emotional stability and decreased anxiety and depression) after some four weeks of use, without the impairment of normal cognitive functioning.
 
South Africa may very well follow suit in the legalization of magic mushrooms, whereafter the implications of the private use of magic mushrooms by employees to treat mental health issues such as anxiety and depression will have to be dealt with by employers. By way of example the recent decriminalization of cannabis in South Africa inadvertedly forced employers to reconsider their substance abuse policies and procedures and particularly what constitutes being ‘under the influence’ or ‘intoxicated’.  
 
Cannabis, unlike alcohol, will be detectible in an individual’s bloodstream for a number of days depending on the frequency of use. An employee thus testing positive for cannabis does not necessary equate to the employee being the under the influence or intoxicated at the workplace. Employers will inevitably be caught ‘between a rock and a hard place’ in striking a balance between creating a healthy, productive and safe working environment and preventing abuse by delinquent employees.  Employers may also face claims of unfair discrimination. 
 
In the recent case of Bernadette Enever v Barloworld Equipment(JS633/20)(1 June 2022) the Labour Court was tasked to determine the fairness of an employee’s dismissal for using cannabis for both medical and recreation purposes outside of working hours.  In this case the employee, who occupied a desk position, utilized cannabis every evening to assist with insomnia and severe anxiety. At the time of testing, the employee was neither impaired nor suspected of being impaired in the performance of her duties but her urine result indicated the presence of cannabis in her bloodstream, in breach of the company’s alcohol and substance policy. 
 
Although the employee’s position did not constitute a safety sensitive position, the company had a zero-tolerance approach to working under the influence of alcohol or drugs. The employee was accordingly dismissed by the company, whereafter she referred both an unfair discrimination and automatically unfair dismissal dispute to the Labour Court. In evaluating the case the Labour Court found that despite the decriminalization of the use of cannabis in a private space, the company was entitled to discipline and dismiss the employee, who acted in breach of its policy. The Labour Court accordingly dismissed the employee’s claim and found her dismissal to have been fair. The employee has subsequently lodged an appeal. 
 
The Labour Court interestingly held that “…Unlike alcohol, one cannot determine a level of impairment based on the test results.  Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature”.  
 
The question then of course becomes whether employers are entitled to prevent the consumption of decriminalized substances by their employees outside of working hours for medical purposes, on the assumption that some effects of the substances may be lingering or affect employees’ performance or simply be in contravention of its zero tolerance policies?  
 
In Air Products South Africa (Pty) Ltd v Neo Archibald Matee and Others (JR763/18)(30 September 2021) the Labour Court had to determine the fairness of the employer’s zero tolerance approach to alcohol and drug abuse on its premises and confirmed the Labour Court judgment in Shoprite Checkers (Pty) Ltd v CCMA and others (2015) 36 ILJ 2273 which stated that “the zero-tolerance policy will be accepted only where the circumstances necessitate the adoption by the employer.  Thus, when pursuing a zero-tolerance policy, the employer has a duty to show that dismissal is appropriate and proportional to the offence”. 
 
Employers who wish to implement zero-tolerance policies must accordingly ensure that it is operationally appropriate to do so.  Employers should take account of the provisions of the Occupational Health and Safety Act and whether its business necessitates the implementation of such inflexible safety precautions.  Similarly, employers should carefully consider their approach in relation to the private use of cannabis, magic mushrooms or any other decriminalized drug, in circumstances where it has no effect on the employee’s ability to perform the function entrusted to them and in the absence of having a justifiable reason to implement a zero-tolerance policy at their workplace.  
 
In striking the balance between creating a healthy and safe working environment, free from substance abuse by opportunistic employees and accommodating employees with mental health conditions, employers will have to re-evaluate the tests utilized in order to draw the distinction and the flexibility they are willing to exhibit in relation to legitimate medical conditions.

Written by Tanya Mulligan (Partner) of Cowan-Harper-Madikizela Attorneys