Best Practices Construction Law : Construction Lawyer & Attorney : Matthew DeVries : Stites & Harbison Law Firm : Green Building & LEED Litigation

Depending on where you live, owners of construction companies may have a new dilemma to address with their employees: medicinal marijuana.  The conflict puts the company's safety and employment policies often dictated by federal law directly up against what may be an individual's rights under state law. 

Stephanie Simon reports in this morning's Wall Street Journal about this drug dilemma in the work place:

Fourteen states and the District of Columbia have laws or constitutional amendments that allow patients with certain medical conditions such as cancer, glaucoma or chronic pain, to use marijuana without fear of prosecution. The Obama administration has directed federal prosecutors not to bring criminal charges against marijuana users who follow their states' laws.

But that can put employers in a difficult position, trying to accommodate state laws on medical marijuana use while at times having to enforce federal rules or company drug-use policies that are based on federal law.

That is precisely the problem for today's construction company, many of whom have rigid drug free work policies that include prohibitions against: 

• the use, sale, manufacture, distribution, dispensing,  and possession of illegal drugs and drug paraphernalia;
• the abuse of prescription and/or over-the-counter (OTC) drugs; and
• the use and/or abuse of alcohol, or reporting to work while under the influence of alcohol or any illegal drug. 

In many instances, a violation of these provisions allows the employer to discipline the employment, including and up to termination of employment.

But what about those states that allow use of medicinal marijuana?  As noted in the WSJ report, it will depend entirely upon state law and the courts' interpretation of that law.  For example, the courts in Oregon, California and Montana and the Washington have all ruled that employers have a right to fire medical-marijuana patients for using the drug.  However, the courts in Maine and Rhode Island have held that an employer cannot penalize an employee simply because of his status as a medical marijuana patient.  In Michigan, the law says that registered patients shall not be "denied any right or privilege" or face disciplinary action at work because they use pot.  There is an exception where employers do have the right to terminate workers who use marijuana on site or come to work high.

What can you do to protect your company? (1) Check you state's law on the use of medicinal marijuana; (2) review your employment and safety policies to make sure you have adequate protections for your employees and to maintain job site safety; and (3) make sure to train your management to observe employee behavior.  The real danger is having an employee come to work "high" or in an intoxicated state.

Image: Joseph Leonardo

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I am involved in the ABA Forum on the Construction Industry’s initiatives to bring various social media to the forefront of our group’s marketing and development activities. This past week, leadership asked us to develop and draft a “best practices protocol” for our work on this issue. After reviewing our charge, I am more and more convinced that owners, developers, contractors, and suppliers need to implement a similar protocol for their development in construction practices.

What is a best practices protocol?

Just as it sounds ... it is a written protocol that outlines the best practices for success on a project, event or task.  In the construction context, it might be a "Best Practices Protocol for Document Management" or "... for Handling Work Injuries."  It contains the steps taken in order to achieve the successes from any given set of circumstances.  It also contains the lessons learned from the failures.

Why would you create a best practices protocol?

In its simplest terms, you would want to create such a written document in order to pass on to subsequent project managers and team leaders the operating procedures and protocols that led to the success or failure of your particular project. 

Is the best practices protocol discoverable in subsequent litigation?  Any lawyer worth his weight in gold would give you the only correct answer ... it depends!  The real issue here is whether a party's "self-critical analysis" can be used by the opposing party as evidence of liability, breach of contract or violation of some standard of care.  The courts have treated the issue differently, but here is a good discussion of the discoverability of self-critical analysis documents.  In short, the basic requirements for the privilege are: (1) the information must result from a critical self-analysis undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; and (3) the information must be of the type whose flow would be curtailed if discovery were allowed.

Question:  Are you creating "lessons learned" or "protocols" for ensuring success on you projects?

Image: Brian Hillegas

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