November 19, 2018
Michael Tracy, Managing Principal at OMNI Human Resource Management
Add Missouri to the list of states now allowing for the medical use of marijuana. The issue of handling medical marijuana and its impact on the workplace continues to be a perplexing matter. If there’s anything we’ve learned from our experiences with Colorado employers, as well as reading much written literature over the last four years, there is no easy answer. As such, we offer the following considerations to developing the “what” an employer might do related to the use of now legal medical marijuana and their workplace.
Premise #1
Employees are expected to be mentally and physically fit and capable of performing their work as scheduled.
This is a fair place to start. You see, this point has nothing to do with medical marijuana or any other diagnosis or treatment. Even considering some reasonable accommodation as may be required under ADA, every employer has a right – an expectation – to establish this standard in the workplace. If anyone, for any reason, fails to demonstrate their condition as anything less than “mentally or physically fit” to perform the essential functions of the job, you have a right to remove them either temporarily or permanently.
The causal effect of “mentally or physically fit” is not of the manager’s concern at the time of infraction, and frankly should best be left undiagnosed as per the reason. Focus on the “what,” not the “why.” Let HR deal with this, and get others involved to avoid claims of favoritism or discrimination.
The frequency of an employee’s inability to demonstrate “mentally and physically fit” in the workplace is another issue, offering the employer the right to determine whether or not such frequency can and will be accepted in consideration of:
- company attendance policy,
- some short-term illness or health condition, and/or
- the ability to satisfactorily and consistently perform the essential functions of the job.
If the frequency of the issue regarding “fit for duty” exceeds whatever limitations noted above, then the employee should be removed from their employment.
Premise #2
How far will a plaintiff attorney go to place liability for loss on an employer whose employee was found to have ANY substance in their blood which may have affected “mentally or physically fit for duty?”
My experience tells me that an employee found under the influence of any potential stimulant, pharmaceutical, narcotic, alcohol or drug in their blood, regardless of substance, legal or otherwise, and despite when such test was made, will elevate risk for both employer and employee.
Bottom line: are you willing to take this risk?
Do you really care what the substance is – or how long its presence remains in the bloodstream? Prescribed pain killers? Alcohol? Antidepressants? Failure to take an insulin shot or any other medications as prescribed? Medical marijuana?
Any potential reason for which an employee has caused harm or loss will cause increased liability to an employer who knew or should have known the “mental and physical fitness” of their employees. Therefore, treat all forms of medications and stimulants with the same degree of caution and consideration. Manage performance…closely. While HIPAA doesn’t allow you to ask whether or not someone is taking some form of drug or prescription, you certainly retain the obligation to evaluate work performance and the employee’s “fit for duty.”
Certainly, special cases related to public safety and DOT requirements allow a more heavy-handed approach. That doesn’t, however, mean any employer can’t expect the same degree of concern for safety and risk mitigation.
Premise #3
Marijuana under any purpose is still an illegal substance on the federal level.
A recent Colorado Case, Coats v. Dish Network, upheld the employer’s right to terminate someone who randomly tested positive for medical marijuana, as this substance is still an illegal drug on a federal level, affording the employer protection against wrongful termination under these circumstances.
I know this is the ultimate slippery slope for the argument about medical marijuana. But in the end, dealing with this issue from a “fit for duty” standpoint and from a “risk management” standpoint are perhaps the most appropriate positions from which a decision should be made. Using the argument “marijuana is illegal, period,” is, in fact, pretty straightforward and clear. The challenge with this position is that such a stand will give rise to ADA-related challenges that will then need to be proven from a “fit for duty” standpoint anyway. If one starts with a “fit for duty” position, as well as “risk mitigation due to loss,” one may avoid the more controversial argument about discrimination and ADA.
Premise #4
The number one cause of all employment litigation is still…to make somebody mad.
The caring and reasonable employer-employee relationship usually finds a fair and equitable way to resolve these types of challenges. If your employer-employee relationship is anything less, you are always open to any number of laws, rules and regulations for which some reason litigation may be forthcoming.
Managing marijuana in the workplace, and, indeed, any use of legalized substances of any kind, will continue to be an argument won or lost based upon the employer’s position and point of view of workplace safety, fit for duty, and loss mitigation. If your decision remains true to purpose and is consistently applied throughout, your risk with whatever decision you make regarding employees and their use of any kind of substances will be better accepted and respected.
