Trend Favoring The Employer
So far the judicial trend is favoring the employer in defending against injuries and claims involving marijuana use on the job or coming to work under the influence. Employees terminated or denied employment because of a positive drug test for marijuana have been up held by the courts.
A few of the most noteworthy cases are:
- Montana: Johnson vs. Columbia Falls Aluminum
- California: Ross vs. Raging Wire
- Michigan: Cassias vs. Wal-Mart
- Washington: Roe vs. Teltec Customer Care Management
Some states allowing medical marijuana have had decisions in favor of the employee. These cases involved issues where the employee sought use of marijuana to recover from a workers compensation injury. A few of these cases are:
- Louisiana: Creole Steel vs. Ricky Stewart
- California: Liberty Mutual and Farmers Insurance vs. Cockrell
- New Mexico: Ben’s Auto Services vs. Vailpandro
Arizona, Connecticut, Maine and Rhode Island have written protection sections for the employee in their laws. However there is still question if these protections are legal and constitutional. At this point in time it seems rulings are unavailable.
Federal Law Should Trump State Law As Marijuana Still Illegal
Federal law should trump state law since Federal Law still has marijuana as an illegal substance. Further laws and rules for commercial drivers, pilots, railroad engineers, and public transportation operators all have adverse penalties for marijuana and other substance abuses.
OSHA general duty clauses require employers to provide a safe place to work. The employer must provide that work areas are free from hazards that may cause injury, or death. Drug impairment falls into this requirement.
The Department of Justice advised it would continue to enforce these laws yet they have refused to challenge states that have legalized marijuana. Hence there is a mixed message which leaves room for the courts to interpret according to their thought rather than law.
Eventually it is expected that the employer will have to prove that the injury or death was the sole result of marijuana use. This may be more complex than a drug test. While marijuana remains in the system for days after usage, it may not be easy to ascertain actual intoxication at the time of loss.
This will require very detailed investigation as to facts of the loss. Witnesses will be necessary to testify as to the employee’s actions just prior to the incident. They will need to be detailed and unimpeachable. Witness statements, preferably under oath or through depositions will assist in this area.
Extenuating situations or other contributing factors will need to be ruled out. Such items may be wet floors, unsafe machinery, safety violations, improper instruction, weak direction and control by the supervisor, poor training, little or no experience as well as many more situations.
In the event of an extenuating situation there still could be liability placed on the employer to cover the claim.
Employers Must Take Firm Position Against Weakening Position
The judicial trend favors the employer concerning marijuana use in the workplace. However, it is also apparent that today’s legal and socio-economic trends are going to chip away at this protection until it disappears. Therefore, employers must take a firm position against any weakening of these present laws and decisions.
With the help of professional persons well versed in this topic employers must develop and implement strong polices against marijuana and other substance abuse on the job. If allowed, the program should also address off duty restrictions. Make certain each and every employee is made aware of the program and signs an affidavit accepting compliance and willingness to accept violation punishments stated in the policy.
When a loss occurs that involves abuse of the policy, demand that the claim technicians and handlers investigate thoroughly. They must be admonished to defend the claim to their maximum allowed by law. Do not allow any settlements or dispositions that could set an adverse trend against employer rights. Keep contact with the adjusters as often as necessary until the claim is resolved.
Implement regularly scheduled meetings with employees to cover as constant reminders of the policy and compliance. Publish general situations where employees were penalized according to policy violation. Be very careful not to divulge too many specifics. The publicity notice should be developed by the corporate legal department.
Employees Made Aware of a No Tolerance Program More Likely to Abide by Program
Employees who are made aware of a no tolerance program disciplines are more likely to abide by the program. Work with industry and professional organizations to have legislation that maintains employer defenses and rights in the substance abuse areas. Keep all abuse policy programs current. Review the standards with legal counsel at least twice a year.
