Whenever I do a seminar and the topic turns to drug testing, inevitably the question of what to do in a state that allows medical marijuana arises. So, let’s address it through the lens of an actual question that was posed to a blog on the Bullard Law web site. http://bullardlaw.com/news/blog/pot-use-at-the-explosives-warehouse–when-to-drug-test/
In this particular question, a Human Resources Director has an employee who operates a forklift in an explosives warehouse. The employee has a stellar record of employment for many years. But recently the employee appears to be using marijuana because he is using a physician with a reputation for prescribing marijuana for medicinal purposes.
A summary of advice and concerns mentioned in the article by Bullard Law:
- Employers are not required to accommodate or tolerate marijuana use in the workplace. http://www.bullardlaw.com/news/blog/clearing-the-air-on-oregons-new-personal-pot-law-and-th/
- The employer’s drug and alcohol policy includes a provision for requiring a test where there are reasonable grounds for suspecting a violation of the policy. This is a fairly common provision. Reasonable suspicion typically refers to observable, objective evidence that gives the employer a reasonable basis to suspect that the employee may be impaired or affected by drugs or alcohol in the workplace. Although it was suspected that the employee was being treated with medical marijuana there were no incidents of observed impairment, although the employee did tell the employer that he sometimes feels “spacey” because of the unidentified medication he is taking. Based on these facts, Bullard Law does not see reasonable suspicion for testing. [We disagree – see #4 below]
- The workplace is a warehouse filled with explosive chemicals and the employee drives a forklift. If his medication affects his alertness (he said it makes him spacey), then the obvious question is whether the employee is fit for safe duty. While Bullard Law did not find reasonable suspicion for drug testing, Bullard Law does see that Boomtown has a reasonable basis for concern about Bud’s fitness while working. In this situation you may want to ask the employee to provide the employer with a limited amount of medical information from his physician relevant to his current fitness for duty. In particular, without asking the doctor to identify the employee’s medical condition or treatment details, you do want his physician to tell you whether he is currently able to safely perform all of the duties of the warehouse position.
Some additional items for consideration that were not mentioned in the article:
- Bullard Law mentions the importance of determining if the employee can safely perform all of the duties of his job. However Bullard Law fails to mention the importance of having an accurate job description. It is important to have a job description that describes the duties and the reasons why an employer may need to take certain actions to assure safety in the workplace. Without this job description and without being able to demonstrate that the employee was aware of the job description, it would be difficult to support any action taken before a judge. http://preemploymentscreen.com/wp/714/
- It is important to have a Drug Free Workplace Program with a valid Drug & Alcohol Policy. Without such a document, the employer would be hard pressed to justify actions taken against a particular employee. These documents should be prepared in conjunction with the advice from competent law counsel.
- It should be noted that there is not one case that thwarts an employer’s right to remove any employee currently engaged in the use of marijuana while on the job. http://preemploymentscreen.com/wp/employers-have-dilemma-marijuana-use-employees/
- The employee told the employer that they felt spacey due to the “unidentified” treatment from the employee’s attending physician. This fact, in our opinion, puts the employer on notice that they were aware of a potentially dangerous situation. We disagree with Bullard Law’s comment that there appeared to be no reason to drug test because of reasonable suspicion. What more reasonable suspicion is necessary than the employee stating they “felt spacey”?