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The recent emergence of “medical marijuana” legislation, and marijuana legalization has created some confusion for employers who want to maintain a drug-free work place and has left many employers asking the question – can they still fully enforce their drug-free policy? Because the legal and employer/employee relationship issues surrounding this topic continue to evolve, all employers with drug-free polices should do their research and ensure that they are adopting and enforcing policies that are indeed enforceable and that cause as little interruption and risk to their business practices.
Earlier this month during a live-chat discussion, Mark Walls and Bert Randall addressed the top challenges marijuana legalization poses for employers – Zero-Tolerance Policies, Impairment and Workplace Safety were the primary challenges that will have the most impact once marijuana is legalized throughout the country.
In fact, according to Mark, the #1 issue is “not if, but when the federal government changes marijuana's classification from Schedule 1 to Schedule 2, it (will) undermine any zero-tolerance policies that may be out there and employers will have to rewrite their policies to focus on impairment.”
And impairment is a major concern for employers. As Mark said during the live-chat,
“There is no easy way to determine impairment under marijuana and no recognized measures of impairment. We don't have a marijuana breathalyzer. Most of the testing out there focuses on the yes or no question on whether or not they have marijuana in their system. Since it can stay in your system for up to a month, that yes or no question is not enough to determine impairment.”
While Bert agreed with Mark’s comments, he believes the #1 issue is Workplace Safety. According to Bert, “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.”
Bert continued to say, “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 who don't pose safety risks are going to be tougher to discipline and terminate going forward as there isn't the same sort of risk to the individual or employer.”
“Lastly, at this juncture, I would suggest that the proverbial sky isn't falling when it comes to drug testing and policies in the workplace, but it could fall soon. Employer, HR reps and Safety Directors must be vigilant to ensure that they keep pace with the ever-evolving caselaw and legislative developments.”
Find out what else Mark and Bert discussed, and what questions your colleagues asked at the live-chat discussion thread. Read more >>
Mark Walls is currently Vice President Communications & Strategic Analysis with Safety National. He has over 24 years of industry experience, mostly working with employers who retain risk. Mark is also the founder of the Work Comp Analysis Group on LinkedIn that, with over 23,000 members, is the largest online discussion community dedicated exclusively to workers’ compensation issues. In addition, Mark is a frequent speaker at industry conferences, writes columns for a variety of sources, and is quoted regularly in multiple media outlets.
Bert Randall is a principal of Franklin & Prokopik. He concentrates his practice in the defense of employers in labor and employment, workers’ compensation, tort liability, administrative and regulatory matters and general civil litigation. He regularly represents employers in state and federal courts, and before state and federal administrative agencies, including: Maryland Workers’ Compensation Commission, EEOC and FEP agencies, DOL, MOSH/OSHA, and Office of Administrative Hearings. In addition to his active trial practice, Mr. Randall places an emphasis on counseling employers in effective employment policy formation and training in order to avoid costly litigation.
We have lots of employees in states with legalization or medicinal use laws and issues can be challenging.