Employers of all types are expected to keep up with laws concerning safety and health in the workplace. But few laws have changed as quickly and as dramatically as America’s regulations on marijuana.
And with the extreme importance of being alert and sober on the job site, the construction must be paying extra attention to these laws and what they mean for worker safety.
As of October 2015, 23 states and the District of Columbia have legalized marijuana in some form, with 19 states and the nation’s capital allowing the use of medical marijuana or marijuana oil. Alaska, Oregon, Colorado, and Washington all allow recreational use in public and private.
Many of these laws were passed just in the last 10 years. And while marijuana in all forms is still currently considered illegal by the federal government, officials have stated that prosecuting such offenses has become a low priority, especially as it pertains to medical use, with limited government funding provided for enforcement.
In a recent landmark case, the Colorado Supreme Court ruled in favor of Dish Network after the firing of an employee who tested positive for marijuana, even though he was approved for medical use and was not impaired at work.As the tide changes toward wider adoption of legalized medical marijuana, however, laws governing its use in the workplace have been slow to catch up. Whether or not the use of medical marijuana can preclude a person from employment is largely untested. Even in Colorado, which recently legalized marijuana for recreational use after having medical use legalized in 2000, employees who use the drug for medicinal purposes are not exempted from workplace drug tests or punishments regarding their findings.
This proves that marijuana laws are a minefield of untested regulations and questionable practices. But one thing that is agreed upon is that working under the influence of any drug, marijuana included, is extremely dangerous, especially when heavy equipment is involved.
So what can workers do to ensure they are on the right side of the law? And how can employers do to ensure their employees are not working impaired.
"What can workers do to ensure they are on the right side of the law?"
Understand your rights
While laws dealing with medical marijuana and employment protection are often complicated, some are relatively straightforward. Since it is still illegal at the federal level, those working in any capacity for a federal employer, like the Department of Transportation, or federal contractors are specifically prohibited from using marijuana in any way. Even if it is determined that marijuana was consumed for medical purposes during non-work hours, that employee may still be fired on the basis of a positive drug test.
This means that general contractors or their subcontractors working under government contracts such as those for the Army Corps of Engineers are entirely banned from using marijuana, even if it is medicinal, and even if it is used during non-work hours.
In addition, several states that have legalized marijuana have explicit statutes in their laws that exempt employers with a zero-tolerance drug policy from allowing employees to use medical marijuana. If a nonfederal employer wishes to mandate drug tests and terminate employees on the basis of a positive result, that employer is not considered to be in violation of the state’s laws regarding marijuana. This is currently the case in most states in which marijuana is legal. Only three states – Arizona, Delaware, and Minnesota – explicitly prohibit employers from firing authorized medical marijuana patients.
But even where recreational marijuana use is legal, employers may be subject to drug testing and termination. Some have attempted to fight this by citing the Americans with Disabilities Act, which prohibits employers from terminating an employee on the basis of a documented medical condition. However, since this is a federal law, and the federal government still considers marijuana an illicit drug “with no currently accepted medical use,” this defense is not likely to hold.
If your company is based in any of the other states that allow marijuana use, it is best to check your organization’s drug and alcohol policy, and refrain from using these substances at all if they are banned by your employer.
What employers should know
When creating an effective policy that outlines specific rules regarding drug use for a worksite, careful research and planning around local laws is vital. A panel of researchers composed of members of the American Association of Occupational Health Nurses and the College of Occupational Environmental Medicine created a guide to help employers navigate the legal minefield of changing marijuana legislation. Among their suggestions:
- Any federal employee or contractor is expressly prohibited from marijuana use. Urine testing may be used to ensure compliance.
- Employers in or bordering states where marijuana is legal in any way should continue to stay apprised of the laws, as they are likely to continue changing.
- Employers in states where recreational marijuana use is allowed should have clear guidelines on using the substance outside of work. Supervisors should be trained on how to spot signs of impairment that may impact the safety of workers. Impairment should be verified by medically proven testing such as a saliva test or urine test.
In states where marijuana use is legal in some form, employers and employees should all be aware of the effects of the drug. While studies have shown that marijuana impairs driving ability less than alcohol and may be considered overall safer to use than alcohol or some other drugs, it is still known to cause dizziness and other psychological effects that may prevent working safely, including the safe operation of equipment and tools.
The Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), and the Office of the Assistant Secretary for Policy’s Working Partners for an Alcohol- and Drug-Free Workplace Program have signed an alliance with several organizations – including the American Road and Transportation Builders Association (ARTBA) and the Associated General Contractors of America (AGC) -- to foster safer, drug-free, and more healthful American workplaces. This Drug Free Workplace Alliance program is designed to protect employee safety and health and will provide Alliance members and the construction industry with information, guidance, and access to training resources to help understand the benefits of drug-free workplace programs.
The program will provide expertise to develop training and education regarding workplace substance abuse and in communicating such information to the construction industry. This will include electronic assistance tools, print and electronic media, and web sites with more information. There will also be speakers and exhibitors at industry conferences, local meetings, or other events. The ultimate goal is to promote a national dialogue on workplace safety and health, raising awareness of and demonstrating a commitment to drug-free construction workplaces.
Just like with any other medicine, talk to your doctor about how medical marijuana could impair you. If you are not registered to take medical marijuana, it is safest to not use it at all, as it may be illegal in your state.