On November 6, 2012, Washington state voters passed Initiative 502 which regulates and taxes sales of small amounts of marijuana for adults. Under the soon-to-be implemented Washington state law, adults in the state may now possess up to an ounce of marijuana, 16 ounces of marijuana products and 72 ounces of liquid infused marijuana products. The initiative passed with a 55 to 45 percent margin.
Because of the obvious conflict between the federal Controlled Substance Abuse Act and the new Washington and Colorado laws, we can expect more developments shortly as these newly authorized state-regulated marijuana markets begin to take shape. Although the Administration (e.g., the Attorney General, etc.) remained silent on the marijuana-legalization initiative throughout the election cycle, it has opposed legalization in the past.
A legal challenge to the Washington and Colorado laws is expected.
How does this affect employers? Neither initiative changes the ability of employers to maintain their current employment policies, nor does it prevent them from creating whatever policies they see fit. If employers do not currently allow off-site marijuana use by employees, they can continue to prohibit it. Neither requires employers to accommodate the use of marijuana by their employees. A recent Washington State Supreme Court decision, Roe v. Teletech, clearly stated that Washington State employers didn’t even have to accommodate workers with a doctor’s authorization to use marijuana under Washington’s Medical Use of Marijuana Act (MUMA).
Does this affect your current drug testing policy? No. The drug testing that your company and millions of employers around the world have been doing for decades was never based on the assumption that the user was doing something illegal under a criminal law – instead it has always been based on SAFETY and the efficiency of your workforce. No one who has failed an employment drug test has been reported to the police or charged criminally. Nothing changes after I-502 or Amendment 64 as far as workplace drug testing. You may be interested in reading this synopsis and legal review “Don’t Fear The Reefer: Legalization of Marijuana To Have Little Effect on WA Employers”
Here are some additional reasons why you should continue prohibiting the use of marijuana and continue drug testing for marijuana (THC):
1. If you are subject to the federal drug testing requirements – nothing has changed. The Dept. of Transportation, Department of Defense, Department of Energy drug testing programs still require that you prohibit the use of marijuana and continue to test for marijuana.
2. If you have or want to be eligible to receive federal contracts or grants, the Drug-Free Workplace Act of 1988 still applies to you – and this includes most state and local government agencies, school districts, etc. This Act requires that your written policy must prohibit ALL illicit drug use as defined by the federal Controlled Substance Act. There is no exception for “medical marijuana” or any other marijuana use. The Drug-Free Schools and Communities Act of 1989, declares that colleges or schools that allow illegal drugs on campus face the possibility of losing federal funding. Many different states have similar laws which will apply to you if you want to work or do business in those states.
3. Smoking pot doubles the risk of serious crashes.”Cannabis consumption – Motor Vehicle Collision Risk”
4. Because you are concerned about liability and risk management, you are probably aware of various courts and Supreme Court decisions that say an “employer can be held liable in such cases if it failed a duty to prevent foreseeable injury”. So, since everyone knows that marijuana use can severely impair, if you allow these people to work at your company or on your job sites, expect to be held responsible for injuries, accidents, and deaths that they cause – basically it’s the same logic as to why you don’t let someone work under the influence of alcohol, even though alcohol is a legal drug.
Every employer should have a drug and alcohol policy. The responsibility to provide a safe workplace and the potential liability from negligent hiring and retention require that employers be aware of and take steps to control work-related substance abuse. The components of a drug-free workplace program, especially drug testing of employees, may raise legal issues with a risk of legal liability if conducted improperly or in violation of federal, state or local laws. Recommendations given are intended to provide reasonably accurate and authoritative information in regard to the subject matter covered. It is furnished with the understanding that we are not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
This article was written reprinted with permission by Tom Pool, Executive Director, Drug Free Business. If you would like more information about drug testing, please contact me at email@example.com
A couple of months ago, Fully Effctive Employees held a free one hour seminar on Medical Marijuana and the Workplace in Bellevue, Washington. We invited guest speaker, Laurie Johnston, an employment attorney and partner at Gordon and Rees, P.S. to speak about the State law which was passed by the Supreme Court of Washington in June 2011, referring to the Medical Use of Marijuana Act (“MUMA”). MUMA does not require private employers to accommodate an employee’s off site use of medical marijuana. The Court further held that MUMA does not create a public policy that would support a claim for wrongful discharge. What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes.
What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes. While medical marijuana is readily available and many
employees are using this option to argue the cause for a positive drug test, it is still an illegal drug according to Federal law and if an employer does have a drug testing policy, the employer is not required to accommodate for this drug. There is no legal prescription for medical marijuana- a letter from a doctor or what is commonly referred to as a “green card” just states that an individual can use a certain amount for a particular diagnosis which can range from chronic, severe pain to minor skin ailments or anxiety. Marijuana is not approved by the FDA because it cannot be regulated and the carcinogens from the smoke and other additives cannot be evaluated as medically safe.
Laurie Johnston advises that it is wise to treat all employees the same, regardless of whether or not they work in a safety sensitive position. If an employee who works in a “safety sensitive position” tests positive for marijuana due to “medical reasons” refuses to cease use, an employer should treat him that same as someone in a desk job, even though safety may not be an issue. Ms. Johnston pointed out that if the employer asks the employee in the desk job to run an errand during company time and that person gets into an accident and it can be proved he has marijuana in his system, there could be liability for the employer. In addition, there may be other protected class or discrimination claims. Ms. Johnston recommends that if an employer chooses to keep an individual who uses medical marijuana solely because the position he works in is not a safety risk, there should be clear policy and documentation to that effect. The employer may be subjecting itself to increased risk and the potential for lawsuits by other employees.
It should be noted that marijuana stays in a person’s system for a long time and someone who has been using it for a while may have to be off of work for up to thirty days until it no longer shows on a drug test. Due to the cut-off levels that the lab uses, trace amounts of the drug can show up but not be considered a positive drug test, therefore “passive inhalation” or second hand smoke would not create a positive drug test. In addition, if the employer is using a SAMSHA certified lab (which they should use) rather than instant tests purchased on line or at a drug store, any substance that one ingests to “pass the test” will result in an “adulterated” sample which would be considered a positive. This is no way to “beat” a drug test if the test is done properly.
While there may be legitimate situations in which medical marijuana is an appropriate option for a physically ill person such as someone who is suffering from a terminal disease or severe pain. In these situations, the person would not be in the workforce or causing a safety risk to himself or others. If employers choose to drug test, they should be aware that they will eventually have an employee who tests positive for medical marijuana and a clear policy and training of all personnel is vital.
We will disucss how the EAP works with employees who test positive for drugs in another post. Stay tuned!
If you have questions about drug testing in your workplace, feel free to contact us.
The national average for a failed drug test is between 4-6%. While some of the excuses are indeed legitimate, more times than not, the excuses while feeble, can be very humorous. Here is a list of some of the excuses we have heard over the years:
While these excuses may be funny, drug use at work is a serious issue. Employees who are under the influence of mind altering substances can cost employers significant amounts of money in accidents, injuries, errors, absenteeism, tardiness, poor performance and more.
The EAP can help.
Rather than listening to an employee’s story about why his or her drug test was positive, refer the employee to us for a comprehensive assessment and return to work plan. Our goal is to help employees keep their jobs, while remaining drug free and to assist employers in maintaining a safe, healthy and productive workplace.
Employers who don’t drug or alcohol test cannot prove that an employee’s injury was caused by his intoxication if a drug test is not offered.
In the case of McKinley v. Klein Steel, Inc., No. 09-CA-930 (La.Ct. App. 03.23.10), the Louisiana Court of Appeal upheld the award of temporary total disability benefits, attorney’s fees and penalties.
The summary: while carrying a stair railing at work, the employee stumbled and hit his head. The employer sent him to a nearby hospital where he was treated for a scalp laceration and released without a drug test and the employer made no effort to have him tested. He later underwent two spinal surgeries as a result of the accident. The employer’s insurer refused to pay workers’ compensation benefits, claiming the employee was intoxicated at the time of the accident, that he refused a drug test and provided false information to the hospital. The Court of Appeals upheld the award of benefits, finding that the employer failed to reasonably controvert the claim. It also awarded the employee penalties and attorney’s fees.
The court explained that a presumtion of intoxication arises when an employee affirmatively refuses a drug test. But because the hospital never offered a drug test, and one was never required by the employer, there was no opportunity for the employee to refuse one, nor was any other evidence of intoxication presented. The court also rejected the contention that the employee gave false information to the hospital to prevent them from verifying his workers’ compensation status. The employee correctly identified his employer to hospital staff but gave the incorrect contact name and number for the employer, being unaware that the individual no longer worked for the employer. Source: www.riskandinsurance.com
This court case emphasizes how important it is to have a drug testing policy which also includes post accident testing. If the employer could prove the employee was in fact intoxicated, they would have saved a lot of money.
Workplace violence, accidents, stalking, sexual harrassment, drug dealing… Are these issues occuring in your workplace? So many incidents and problems can be prevented if employers know what they are dealing with ahead of time. Many times I have consulted with employers about potentially violent employees. When I ask about the individual’s history, many employers have no idea if the employee has a criminal history. Unfortunately, history can repeat itself. Statistics show that those with a history of violence are more likely to reoffend. Wouldn’t it make sense to know this before you hire someone?
In a difficult economy, you can afford to hire the best. It is important to properly screen your potential hires not only with a thorough interview process but also with pre-employment screening tools such as drug testing and background checks. It is so much easier to turn down a candidate before you hire than to terminate due to a bad fit or serious issues that effect safety and security.
If you are interested in background screening, we can help you locate a very low priced program with many different levels of service. It is an extremely cost-effective tool to help you maintain a safe and productive workforce. Please email me for more information at firstname.lastname@example.org