We have frequently written about the danger of having medical marijuana users in safety sensitive positions in your workforce. We are very concerned about employees using this drug and then being on the job in a safety position. When it comes to marijuana, we want to encourage employers to take steps to protect their workforce and other third parties from injury.
We have previously written about linking the job description’s responsibilities to your drug policy.
You should rewrite job descriptions as we discussed here in this blog so that there is a clear link between the essential functions of the safety-sensitive job and the need to be in this job without being under the influence of drugs or alcohol.
A safety sensitive position is one where the employee holding this position has the responsibility for his/her own safety or other people’s safety. Obviously, if a person operating in this type of job is under the influence of drugs and/or alcohol, members of the workforce, the public or even themselves could be injured or even killed. A person in a safety sensitive job must have a sharp mind and perform the job’s tasks and responsibilities carefully.
Another part of your drug testing program should be to make available to employees the resources to help rehabilitation e.g. an Employee Assistance Program. We outline the importance of an employee assistance program in this blog post
The outcome of this lawsuit is not yet known We have included a summary to illustrate the steps Domtar took to assure its action is defensible.
“Domtar fired an employee at its Ashdown paper mill for legally using marijuana away from work, according to a lawsuit filed Friday in Little River County circuit court.
The Plaintiff alleges he worked at Domtar Paper Company LLC for more than 11 years before he was fired for using marijuana prescribed to him by a doctor. The Plaintiff said in his complaint that he had a perfect safety record throughout his employment and had been a medical marijuana user for two years before Domtar gave him the choice to quit his prescription marijuana use or go to drug rehab.
The Plaintiff was regularly screened for illicit drug use and tested positive for marijuana, but no action was taken because of his status as a medical marijuana patient, according to the complaint. The Plaintiff accuses Domtar of reclassifying all positions at the Ashdown mill as “safety-sensitive” so that it could get rid of employees using marijuana legally.
“Under Amendment 98, employers can decline to hire or fire a medical marijuana patient in a ‘safety-sensitive’ position,’ when the position is designated as ‘safety-sensitive’ in writing and meets the specific qualifications” set forth in the amendment, the complaint said.
“Plaintiff was told if he could not produce this test, the defendant would offer him the opportunity to attend drug rehabilitation for a substance he has a doctor’s prescription to use,” the complaint said.
Plaintiff claims he was fired on July 12 by Domtar “because he could not produce a ‘clean’ drug test and he refused to attend drug rehabilitation,” according to the complaint.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about how to save a life with your drug testing policies, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: firstname.lastname@example.org or the website at randisiandassociates.com