8/6/2014

Weed In The Workplace

Practical Considerations for Employers

By Maital Savin , Kunal Ganti , Ann Schnure

Weed, pot, grass…whatever you call it, the legalization of marijuana is on the rise. Over 20 states and the District of Columbia, have legalized medical marijuana. Colorado and Washington have even legalized recreational use of marijuana. Alaska may soon be the third state to do so. In fact, as recently as May 19, 2014, the New Mexico Court of Appeals affirmed a workers’ compensation decision forcing the employer to reimburse an employee for the costs of medical marijuana to treat his injuries. This cultural and legal shift has left many employers dazed and confused about what this means for their workplace.

Does this mean that employers have no recourse and must allow employees to come to work high? No. Just because employees may now legally obtain marijuana in many states, does not mean that employers cannot implement and enforce drug-free workplace policies. Courts in California, Michigan, Colorado, Washington, Montana and Oregon have ruled in favor of employers who have terminated employees who have tested positive for marijuana. In fact, many states’ legislation specifically allows employers to enforce policies that provide for termination upon a positive drug test.

Recently, in Phillips v. Continental Tire The Americas, LLC, the 7th Circuit even affirmed an employer’s right to enforce a policy that required employees to drug test upon the initiation of a workers’ compensation claim and failure to submit to such testing would result in termination.

However, some caution is warranted. Marijuana may be detected in a person’s system for up to three months following use. Thus, employers are at risk for being sued for discrimination if they discipline employees on the sole basis of a positive drug test. An employee may claim that he or she is being discriminated against based on his or her status as a medical marijuana patient, which is explicitly prohibited in many states, or based on the condition for which he or she is prescribed medical marijuana. Employers should carefully consider what they will do if an employee tests positive for marijuana. To mitigate the risk of a discrimination suit, employers should enforce their policies uniformly. More importantly, employers should observe and document any objective factors that support a good faith belief that the employee was impaired at work, such as impaired symptoms of speech, physical dexterity and coordination.

Making Hiring Decisions

Employers may not discriminate in hiring and promotions based on an employee’s status as a medical marijuana patient. However, this does not mean that employers in certain industries must hire a job applicant who is otherwise qualified for a position, such as a pilot, but who has disclosed that he or she is a medical marijuana patient. Employers that face restrictions under federal law by agencies such as the U.S. Department of Transportation, which prohibits the use of medical marijuana for pilots, drivers and other safety-sensitive jobs, may discriminate in hiring based on medical marijuana patient status alone. If a job applicant discloses use of a prescribed medication that would preclude him or her from safely performing the job that he or she is applying for, the employer may decline to hire the applicant.

However, employers should not ask a job applicant about his or her prescription drug use as this may elicit information about a disability.

It is important to keep in mind that marijuana remains illegal under federal law. Courts have held that federal employment statutes such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) do not protect or allow for the use of medical marijuana. Thus, employers need not accommodate medical marijuana use and are not required to permit an employee to take breaks to smoke medically prescribed marijuana under the ADA.
Practically speaking, employers should review their employment handbooks to be sure that their policies are consistent with the current laws in their state. Employers should also ensure that their policies are clear and known to all employees.

Injured on the Job

What about the employee who shows up high to work and is injured? Employers should be keenly aware that workers’ compensation laws in many states do not cover injuries that result from intoxication. In some jurisdictions, the intoxication defense may succeed if the employer can show that either the intoxication was the sole cause of the employee’s injury or the intoxication was so excessive that it constituted a departure from the course of the employment.

In Illinois, for example, no compensation is due if at the time of injury, there was a .08 percent or more by weight of alcohol in the employee’s blood, breath or urine or if there is any evidence of impairment due to the unlawful or unauthorized use of cannabis, a controlled substance or an intoxicating compound. Like many states, outside of alcohol, the Illinois Workers’ Compensation Act does not define impairment or intoxication. In Illinois and New York, if an employee refuses to submit to post-injury testing of the blood, breath or urine, then there is a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the injury. The employee may overcome the presumption by showing that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries. In some jurisdictions, if the employee’s intoxication resulted from activities that benefited the employer’s business or interests, or the employer encouraged the intoxication, the intoxication defense does not apply. Moreover, California and New York, among other jurisdictions allow workers’ compensation awards to be apportioned based on the extent the intoxication is determined to be a contributing cause to the workplace accident.

Drug Testing

Employers should consider implementing a post-accident drug-testing program. The drug testing must be done at or near the time of the accident. Moreover, to have the best chance for admissibility at trial, an accredited or certified testing laboratory must complete the drug test.

Even if there is a positive drug test post-accident, that may not be enough evidence to properly deny a workers’ compensation claim. Some jurisdictions have found that the mere presence of drug metabolites in a drug test is insufficient to find that the employee was impaired. In those jurisdictions, to properly deny a claim and to present the strongest defense, employers would need to hire a toxicology expert to analyze the drug test data and come to the conclusion that the concentration of drug metabolites in the blood, breath and/or urine was enough to impair the employee. Further, since many workers’ compensation laws focus on impairment, employers would need to interview all possible witnesses who can testify as to the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence/carelessness or disregard for safety at or near the time of the accident. Like many workers’ compensation cases, intoxication cases are very fact-specific. The more facts that an employer has showing impairment, the better the outcome will be at trial.

Finally, it is important to remember that in most jurisdictions the only way to deny workers’ compensation benefits using the intoxication defense is based on illegal use of a substance or that the use is a violation of company policy. Thus, if an employee has a valid prescription for marijuana, then a uniform zero-tolerance drug policy is the best way for employers to mitigate their risks associated with medical marijuana in the workplace.

Despite many states legalizing marijuana, employers still have the right to keep their workplaces drug free and to discipline and defend against claims by employees that choose to come to work high.



Maital Savin is an associate with the CLM Member Firm Bryce Downey & Lenkov LLC. She can be reached at msavin@bdlfirm.com, www.bdlfirm.com.

Kunal Ganti is an associate at Bryce, Downey & Lenkov.

Ann Schnure is the Vice President of Risk Management for Macy’s and Dean of the Claims College School of Workers’ Compensation.

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