Subscribe to LexTalk to stay on top of today’s legal issue and trends.
Catapult Your Career |
Industry Insights & Trends |
Product Training & Tips
Thanks for the lively discussion around the issue. While Mark and Bert are no longer moderating this discussion, please continue to share your thoughts and ideas with the rest of the community.
To join in the discussion, register to LexTalk and prepare your comments within the ‘Join The Conversation’ text box (located at the bottom of the post) and click on Share.
Thank you for joining us after the webinar. I am going to ask you a few additional questions about marijuana legalization, and would love to get your thoughts and opinion around this topic.
Q1: From a broad perspective, what do you think marijuana legalization means for any Company’s drug-free workplace policies?
Since marijuana remains illegal under Federal law, the courts around the county have been upholding an employers rights to terminate someone for violating their drug-free workplace policies.
Q2: To get a bit more granular, how do you think the changing legal status of marijuana legalization will impact workers’ compensation claims?
In instances where an employer with zero tolerance and random testing in place ends up surprised by a key/star employee testing positive, if they decide to issue no discipline or something less than termination but then apply a more stringent to the next + test... what are the risks?
Employers must be consistent in the application of their policy. If they build discretion into their policy then they can exercise discretion in it's application. However, even then they need to be careful around that discretion to make sure they are not discriminating in its application.
Amanda: There are two main issues around workers' compensation. Compensability and allowing medical marijuana for treatment. The compensability issue will usually come down to a judge deciding whether or not the employee was impaired at the time of the accident and whether that impairment was the proximate cause of the injury. On the treatment issue, the problem is if something is not specifically prohibited by the workers comp statutes it then is up to individual judges to decide on whether the treatment will be allowed. Some states have prohibited this by statute, most have not.
States are making a lot of revenue and business is booming with medical marijuana. It’s much needed economic growth in our stutter step economy. Several red states in 2014 have taken baby steps in enacting legislation to allow medical marijuana for intractable epilepsy patients, although these patients have to go to Colorado to buy their drugs. Thoughts anyone?
If an employer provides assistance with rehab for certain employees as a result of positive testing does this set them up for needing to offer the same in the future?
Robin: Florida is considering this legislation right now and the expectation is it will pass. If this happens, I won't be surprised to see Georgia take a look. I expect the Federal government will eventually enact legislation reclassifying marijuana from a Schedule 1 to a Schedule 2, which would take away the fact that it is illegal under federal law. If that happens, I will be interested to see if the conservative states follow suit.
AmyBeth - That very well could be the case. It need not be so long as discretion is built into the policy, but if an Employer chooses not to offer the same in the future, there are potential risks for Title VII discrimination - age, race, national origin, etc. So any employer doing so should be wary of possible exposure there.
Thank you for joining the discussion!
Q3: Mark & Bert - In your expert opinions, what are the top 3 challenges marijuana legalization poses for employers?
For me, the #1 issue is not if but when the Federal govt changes marijuana's classification from Schedule 1 to Schedule 2. If they do that, it undermines any zero-tolerance policies that may be out there and employers will have to rewrite their policies to focus on impairment.
#2 Workplace Safety - Whether it's OSHA's General Duty Clause, Workers' Compensation Exposure, Tort Liability Risks or another safety related issue, Employers must be extremely cognizant of safety sensitive positions and the implementation of their drug and alcohol policies. One can expect that the courts will be more lenient of employee discipline, including termination, where an employee is working in a safety sensitive positions - whether it's a CDL driver, construction worker, assembly line worker or the like. I suspect that clerical workers and others that don't pose safety risks are going to be tougher to discipline and terminate going forward as their isn't the same sort of risk to the individual or employer.