Scenario: An employee has a medical marijuana license. A question about impairment and a safety-sensitive job arises. Will a drug test or federal law protect your company?
Increasingly, the answer to that question is no – at least not relying solely on a drug test or federal law.
That was the takehome from the session, In the Weeds, at the ASSP’s Safety 2020 conference, featuring three lawyers and Toyota’s Senior Medical Director, Gregory Robbins, M.D.
Emphasis gets put on drug testing for marijuana. But current case law shows employers often miss other important steps when trying to show impairment.
As more states legalize medical marijuana, Robbins says a key factor companies miss is defining safety sensitive positions.
How do you define it?
The definitions should be in a written policy based on job descriptions and tasks, not just the title of the job.
The broader the definition, the more likely your policy will be successfully challenged in court.
For example: Operating a forklift qualifies as safety-sensitive.
But someone at the same warehouse facility who works in Accounting and has to access the warehouse once a month as part of their job – even though that person faces risks on one day each month, saying the job is safety sensitive isn’t likely to hold up legally.
What if the office worker has to be in the warehouse a few times a week? Now you’ve entered a gray area where, if a medical marijuana user challenges your company in court, a paper trail showing your company’s analysis in designating safety-sensitive positions would be key.
Supervisor training is crucial
The ASSP panel presented examples in which, despite positive drug tests, employers lost in court after an employee with a medical marijuana prescription tested positive.
Example: In Arizona, a Walmart employee injured their foot on the job. The worker was fired after a positive drug test. The employee sued and Walmart lost when a court ruled the positive drug test by itself wasn’t enough to prove impairment.
Here’s what does help in court: supervisor documentation that notes actions by an employee that caused a suspicion of impairment.
Supervisor documentation combined with a positive drug test is more likely to stand up in court, according to the experts at the ASSP session.
Here’s more good advice from the experts: Keep up to date on courts’ employment law decisions on medical marijuana in each state where you operate.
Rulings still vary widely from place to place and, unless you want to be a test case, it’s best not to assume the same rules apply at all your locations.
Here’s more good advice from the experts: Keep up to date on courts’ employment law decisions on medical marijuana in each state where you operate.
Rulings still vary widely from place to place and, unless you want to be a test case, it’s best not to assume the same rules apply at all your locations.
Here’s more good advice from the experts: Keep up to date on courts’ employment law decisions on medical marijuana in each state where you operate. Rulings still vary widely from place to place and, unless you want to be a test case, it’s best not to assume the same rules apply at all your locations.
