Synopsis: This may be coming to a worksite near you—what to do with open use of otherwise legal “medical marijuana” and other legal drugs/opiates in the workplace.
Editor’s comment: Better to be forewarned and hopefully forearmed. There are now fourteen states that allow use of medical marijuana within their borders. Any analysis of such drug use in the workplace should mirror restrictions on any legal drug that affects health and safety of the worker and those around them.
Companies in states that have legalized medical marijuana clearly face a dilemma when deciding how to handle employees who use the drug. Many of the 14 states that have legalized medical marijuana have not addressed the issue of how employees who use the drug are protected in their workplaces. As a result, some companies have fired employees who they know are legally allowed to use medical marijuana in an effort to avoid charges of negligence that could be made in the event that such employees injure a customer.
This touchy issue garnered increased attention after a big box retailer decided to fire an employee at their location in Michigan. The employee indicated he used medical marijuana to help him deal with pain caused by cancer and an inoperable brain tumor. Although the employee had a medical marijuana card and prescription for the drug from his doctor and claimed he never went to work under the influence of the drug, the employer fired him because it was concerned about the health and safety of its customers, vendors and employees.
The State of Michigan’s medical marijuana law apparently prohibits companies from discriminating against individuals with medical marijuana cards. Therefore, Michigan’s Department of Civil Rights is investigating the case to see if the decision to terminate violated the state’s disabilities protection laws.
Our recommendation is to have a clear policy about all drug use. First, ban any illegal drugs and enforce a drug and alcohol-free work site rule. If you need help with implementing such rules, contact us.
Next, as to legal drug use in the workplace, at a minimum, require open disclosure as an advertised and promulgated personnel policy. You can’t deal with issues you aren’t aware of. Any employee or other staff member at any level who is taking a drug or medication, whether or not prescribed by the staff member’s physician or other healthcare giver, which may adversely affect that employee’s ability to perform work in a safe or productive manner, should be required to report such use of medication to his or her supervisor. This mandate should include any and all drugs which are known or advertised as possibly affecting judgment, coordination, or any of the senses, including those which may cause drowsiness or dizziness.
The supervisor, acting in conjunction with your management, must then determine whether the employee can remain at work and whether any work restrictions will be necessary. As part of due diligence, consider contacting an OccDoc to give you their thoughts for your complete file before taking any action. If you need solid OccHealth doctors who can assist in such situations, send a reply. If you need sample personnel policy provisions on these issues, send a reply.
Your goal is to have your defense case-in-chief in place long prior to any complaint being raised. We appreciate your thoughts and comments.
Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by
Eugene F. Keefe, Michael J. Danielewicz, John P.
Campbell, Joseph R. Needham and Shawn R. Biery with
the goal of providing high-quality and cost-effective
civil litigation services for the defense of
self-insured employers and insurance carriers.
