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.
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