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The Long and weedy road

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Long Weedy Road

Dr Malkin was featured in The ROAD AHEAD, TRANSPORT SECTOR MAGAZINE
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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.
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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.
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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.
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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.
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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?

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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.
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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.
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So how do you determine if someone is under the influence?
This is where things get complicated.
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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.
[/av_textblock] [/av_one_third] [av_one_third min_height=” vertical_alignment=” space=” custom_margin=” margin=’0px’ padding=’0px’ border=” border_color=” radius=’0px’ background_color=” src=” background_position=’top left’ background_repeat=’no-repeat’] [av_image src=’https://workforcehealthcare.co.za/wp-content/uploads/2018/11/The-Long-and-Weedy-Road.bmp’ attachment=’1345′ attachment_size=’full’ align=’center’ animation=’no-animation’ styling=” hover=” link=” target=” caption=” font_size=” appearance=” overlay_opacity=’0.4′ overlay_color=’#000000′ overlay_text_color=’#ffffff’ custom_class=”][/av_image] [/av_one_third] [av_two_third first min_height=” vertical_alignment=” space=” custom_margin=” margin=’0px’ padding=’0px’ border=” border_color=” radius=’0px’ background_color=” src=” background_position=’top left’ background_repeat=’no-repeat’] [av_textblock size=” font_color=” color=” custom_class=”] Therefor a confirmatory test must be conducted, this is challenging for four primary reasons:
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Strict policy adherence
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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.
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Test complexity
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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.
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Waiting periods
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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.
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High cost
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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.
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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.
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[/av_textblock] [/av_two_third][av_one_third min_height=” vertical_alignment=” space=” custom_margin=” margin=’0px’ padding=’0px’ border=” border_color=” radius=’0px’ background_color=” src=” background_position=’top left’ background_repeat=’no-repeat’] [av_image src=’https://workforcehealthcare.co.za/wp-content/uploads/2018/11/The-Long-and-W1eedy-Road.bmp’ attachment=’1346′ attachment_size=’full’ align=’center’ animation=’no-animation’ styling=” hover=” link=” target=” caption=” font_size=” appearance=” overlay_opacity=’0.4′ overlay_color=’#000000′ overlay_text_color=’#ffffff’ custom_class=”][/av_image] [av_textblock size=” font_color=” color=” custom_class=”] Doctor Richard Malkin of Workforce Healthcare
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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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2 November 2018
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LEGALISING DAGGA IN THE WORKPLACE

By Blog

Tuesday, 6 February 2018:  South Africa seems to be following the trend in the United DRmalcom-03States to legalise cannabis. Last year, Judge Dennis Davis ruled in a full bench decision of the Western Cape High Court, that the use and cultivation of cannabis by an adult in a private home is constitutionally legal. While this decision needs to be confirmed by the Constitutional Court before taking effect, it does cast a spotlight on the adequacy of company policies regarding the use of legal and illegal substances including dagga in the workplace.
 
MD of Workforce Healthcare, Dr Richard Malkin has taken a particular interest in drug testing of employees in the workplace and says that workplace policies need to be very robust, given that both employers and employees are tasked with creating a safe workplace.
 
“An employer is held personally responsible if the workplace is not safe and employees can be prosecuted if they don’t comply. In fact, every employer has a duty to stop employees from entering or remaining at work if they appear to be under the influence of intoxicating liquor or drugs. Depending on a company’s policy, an employee who arrives at work stoned or impaired, and who poses a safety risk, could be fired or arrested. The problem is that dagga for instance can show up in the bloodstream up to a week later – it could become legal at home and not in the workplace and then what does a company do?” queries Malkin.
 
He clarifies that the term safety is used broadly and may involve physical safety or even reputational safety. “A stoned employee in the call centre, an equities trader or a crane operator may all pose safety risks for different reasons,” he explains.
 
Workforce Healthcare offers integrated employee wellness and assistance programmes as well as occupational and primary healthcare services to a large client base of public and private companies across South Africa covering more than 34 000 employees. Malkin has observed that certain industries tend to turn a blind eye to substance use when it is perceived to make employees more productive.
 
Furthermore pro-dagga groups advocate that employees should not consent to drug testing unless their employment contract specifically covers drug testing or the company has a comprehensive occupational health policy in place. So a policy is critical. Before you perform drug and alcohol tests, you need to gain written consent from your employees. We need to have a source for reference. To do this, you need an occupational health and safety policy in place, which is set out in the employment contract. The employee’s signature on his employment contract should include consent for drug testing.
 
Testing for dagga use is particularly difficult. First the employee is asked whether he is taking any substances. Then a screening test is done using saliva or urine. If the test indicates dagga use, it needs to be sent to a lab for confirmation. The testing is further complicated as the test seeks the break down product of cannabis and not the presence of the substance itself.
 
Given that South Africa is one of the world’s largest producers of dagga and SA has some of the most lax dagga laws in the world according to Wikipedia, Malkin’s recommendation is to get clear about your policy on dagga.
 
“In the workplace, it all boils down to your substance abuse policy,” he explains. “An employee could for instance take a Valium or cough mixture, both legal substances, and be at the office in no condition to work or to operate machinery.  I advise companies to use experts to help formulate their company policy and avoid the minefield of complications around substance abuse in the workplace. Workforce Healthcare has helped several organisations prepare policies and we are able to do the necessary random periodic testing countrywide,” he says.
 
Dr Malkin alerts South Africans to another issue which has an unintended consequence. If a person consumes cannabis at home and the person drives a vehicle whilst stoned, the person cannot be successfully prosecuted as there is no current legislation that defines an acceptable level of cannabis in the body whilst driving.
 
Legislation needs to be amended that defines an acceptable level of cannabis in the body to drive just like alcohol which is clearly defined. Malkin is of the opinion that until legislation is amended, there is a risk that South Africans are exposed on the roads with seemingly no consequence to the perpetrator.
 
– ENDS –
 
Workforce Healthcare is the healthcare division of AltX listed Workforce Holdings. It is a specialist health and wellness provider that aims to positively influence employee health and wellness through disease prevention, early detection and diagnosis, and interventions that restore and optimise health and wellness. Workforce Healthcare is a doctor-driven organisation and have been actively involved in helping employers formulate cost-effective workplace wellness solutions since 1986, specifically in the industrial sector.
 
Workforce Holdings and its group of companies is a leading, trusted provider of employment, training, healthcare, wellness and financial and lifestyle services and benefits to individuals and their employers. Human capital solutions include: temporary employment services, permanent placement recruitment, training and skills development, healthcare and wellness, disability solutions, financial and lifestyle services and business process outsourcing. Workforce Holdings Limited is listed on the AltX board of the JSE, employing over 1 200 permanent staff and paying approximately 32 000 temporary contractors weekly.
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6 February 2018
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