Chapter Corner

Marijuana Usage is a Workplace Safety Issue

Posted in: Features, January/February 2019

Let’s clear the smoke on this issue – the expanding societal acceptance and legalization of marijuana usage (medical or recreational) poses a substantial workplace safety issue on construction job sites. Contractors should take immediate action to address this expanding risk.
 
MARIJUANA’S NEGATIVE EFFECTS

Regardless of the strength of the arguments for or against medical marijuana usage for what are understandably difficult personal circumstances, none are more compelling than providing a safe construction worksite for employees and the public.
 
Construction workers must have full use of their skills and faculties while performing all aspects of their jobs. Medical marijuana may have positive medical benefits, but there are also well-documented negative effects. Some negative effects to the central nervous system include changes in sensory perception, altered thought formation and expression, short-term memory problems, and impaired thinking and learning. Negative physical effects include impaired motor performance, loss of balance and coordination, decreased attentiveness and alertness, prolonged response time to stimuli and danger, decreased ability to judge distance and space, and impaired ability to perform complex tasks.
 
These negative effects could be disastrous on a construction job site. The problem with determining whether an employee is potentially subject to these negative effects on a jobsite is there is currently no reliable metric for determining when a particular level of THC from marijuana usage impairs the user and for how long that user remains impaired. THC and other psychoactive components stay in the body much longer than alcohol. Studies regarding the duration of impairment show the duration of impairment from marijuana use may be longer than previously known and could be up to 24 to 48 hours. Chronic use of marijuana may have long-term brain effects that could impair construction workers even if they are not actively using on the jobsite. A positive drug test does not necessarily indicate a person is currently intoxicated or impaired.
 
EXPANDING USE AND ACCEPTANCE OF MEDICAL MARIJUANA

Marijuana usage is broad-based, with no direct connection to age. In a recent survey, 31.6% of people 18-25 used marijuana in 2013. But, the largest growth among marijuana users is in the 55-64 age group with an increase of 455% from 2002 to 2014. Employers should not just be paying attention to this risk with their millennials. Older workers (with growing medical issues related to aging) are increasingly using medical marijuana.
 
Another problem arises from lagging technology. Use of marijuana and impairment is very often difficult to determine because there is no reliable test that conclusively determines when someone is “high” from marijuana. A positive drug test does not necessarily indicate that the person is currently intoxicated or impaired from the substance.
 
EXPANDING LEGALIZATION OF MARIJUANA – BY THE STATES
 
Marijuana remains illegal under federal law as a Schedule I Narcotic under the Controlled Substances Act of 1970 (CSA). Under the CSA, it is illegal to manufacture, sell, distribute, or possess marijuana and no physician may prescribe marijuana use. However, 30 states have passed laws legalizing the medical use of marijuana under their laws1. Nine states2 and the District of Columbia have also legalized recreational use. These lists seem to grow with every election, so contractors should continue to monitor developments.
 
This poses a perplexing legal issue for contractors (and probably a few law professors as well): how do you resolve a conflict between federal and state law on such a critical issue? For this article, I will keep it simple: focus on job site safety. Protecting the safety and health of employees and the public should be every contractor’s primary focus. 
 
Although there is generally no legal protection for use, possession, or intoxication at work, the expansive adoption of medical marijuana laws by the states poses significant legal and practical issues for construction industry employers.
 
OSHA’S GENERAL DUTY CLAUSE

OSHA does not have a specific standard that prohibits drug use or impairment from drug use on a job site. However, the General Duty Clause, Section 5(a) (1) of the OSH Act, may be applicable: “Each employer shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” The General Duty Clause is intended to protect employees when there is no particular standard that applies. For example, OSHA has targeted such recognized unregulated workplace hazards as combustible dust and internal traffic control plans in highway work zones. To prevail on a General Duty Clause, OSHA must establish these elements:
 
  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and
  • There was a feasible and useful method to correct the hazard.
It’s conceivable OSHA could attempt to use the General Duty Clause if a medical marijuana use is a factor in a workplace accident. Time will tell.
 
MUST AN EMPLOYER ACCOMMODATE MEDICAL MARIJUANA USAGE?
 
Not under federal law, but possibly under some state laws. Indeed, one of the key questions presented by medical marijuana laws is whether an employer must accommodate an employee’s medical usage. Marijuana laws vary widely state to state. Of states with medical or recreational marijuana use laws, some expressly allow employers to enforce their drug-free workplace policies, including CA, CO,DE, FL, IL, MT, NV, NH, and WA. Some have anti-discrimination provisions for lawful use outside the workplace, including AR, AZ, CT, DE, IL, ME, MN, NY, NV, PA, and RI.
 
In California, the California Supreme Court found state law could not completely legalize medical marijuana because marijuana remains illegal under federal law. Moreover, because the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate the use of illegal drugs, an employer is not in violation of the FEHA if it refuses to hire someone who tests positive for medical marijuana use. Indeed, an employers’ right to “maintain a drug and alcohol free workplace” has even been codified in California Health and Safety Code section 11362.45(f). Some legislators attempted to introduce a bill to change the law, but it is currently stalled. See https://ogletree.com/shared-content/content/blog/2018/june/californias-medical-marijuana-nondiscrimination-bill-stalls-foreshadows-similar-legislation.
 
In Florida, employers are expressly not required to accommodate marijuana use. The law itself states:
 
(15) APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.
 
Fla. Stat. § 381.986
 
The most recent state medical marijuana law is in Oklahoma, which many consider to be one of the broadest. See https://ogletree.com/shared-content/content/blog/2018/august/oklahomas-new-medical-marijuana-law-and-your-workplace. Under the new law, Oklahoma employers cannot discriminate in hiring, impose any term or condition of employment, or otherwise penalize an employee based on his or her status as a medical marijuana license holder or solely based on a positive test for marijuana or its components. However, employers may lawfully take employment action against employees (including medical marijuana license holders) for the possession of and/or use of marijuana: at the place of work; on or in work property, vehicles, or equipment; and/or during work hours (i.e., off the employers’ property but “during the hours of employment”).
 
WHAT SHOULD CONTRACTORS DO NOW?

Construction industry employers should take these actions:
  • Understand your rights and responsibilities under your state’s law.
  • Remind employees that on-the-job impairment is not tolerated and that medical marijuana is no exception.
  • Update your drug-free workplace policy and drug-testing policy and procedures (see below example).
  • Provide employee education on company policies and impact of legal changes (with emphasis on safety!).
  • Train supervisors and managers on how to spot issues that may need further consideration.
  • Offer employee assistance where appropriate (e.g., for serious health conditions under the FMLA or
    disabilities under the ADA).
SAMPLE POLICY LANGUAGE FOR CONSTRUCTION INDUSTRY EMPLOYERS

Employers may want to consider the policy below or something similar that focuses on workplace safety and
prohibiting on-the-job intoxication or being under the influence of marijuana (medical or otherwise).
 
Your Safety and Marijuana Usage 
ConstructCo puts your safety first. The safety of our employees, other contractors’ employees, and the general public is our highest priority. Although many states have recently passed laws attempting to legalize medical and recreational marijuana usage, marijuana usage for any purpose remains illegal under federal law and is a serious risk to health and safety on a construction site. ConstructCo strictly prohibits illegal drug possession, use, or impairment, and medical marijuana is no exception, even if a state has a medical marijuana law.
 
Before implementing this or any policy impacting marijuana, check with counsel. This area is increasingly complex and nuanced. Above all, focus on safety!
 
1 MEDICAL: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and West Virginia
2 RECREATIONAL: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington
 
Phillip B. Russell, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Tampa, FL), is Board Certified in labor and employment law by the Florida Bar.