Marijuana and Workers Compensation

Now that marijuana use is legal in nine states, what does this mean for your workers’ compensation safety program?

Twenty-two states and the District of Columbia now allow the medical use of marijuana. Colorado and Washington have also legalized its recreational use and possession. Will this send employers’ zero-tolerance policies up in smoke? Jeff Burgess, Program Coordinator, Technical Assistance for Employers in Oregon’s Bureau of Labor and Industries, says in a recent report, “The answer is no.” State laws “generally provide immunity from state and local criminal prosecution under certain circumstances. They do not provide employment protection, however.”

Generally, employers can prohibit on-duty employees from using marijuana medicinally. Refusing to hire or otherwise discriminating against those who use medical marijuana on their own time remains a gray area in most states. However, Connecticut and Arizona have passed laws specifically protecting medical marijuana users from employment discrimination.

Should Your Safety Program Include Drug Testing?

In some states, workers’ compensation insurers will discount an employer’s premiums if it institutes a drug-free workplace policy and program. There’s good reason for that. Studies show that when compared with non-abusers, substance-abusing employees are more likely to:

• change jobs frequently
• be late to or absent from work
• be less productive than other employees
• be involved in a workplace accident
• file a workers’ compensation claim.

Research also indicates that between 10 and 20 percent of the nation’s workers who die on the job test positive for alcohol or other drugs.

Employers can test for drugs at different points in the employment process — during the application process, during employment at random or regular intervals, or after an accident. It can be done for some or all workers — for example, for safety-sensitive positions only, or for all workers. Because drug testing costs money, you may choose not to use this method for assessment. However, many workers’ compensation experts recommend testing all employees after an accident or near-miss to rule out the use of drugs.

If you decide to implement a drug-testing program, remember that laws designed to protect workers’ civil rights could affect your workplace drug policies. These laws include the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) of 1990. These statutes limit how far an employer can go in investigating and disciplining employee drug use.

Federal law still classifies marijuana as a Schedule I illegal drug. In an informal opinion, the Equal Employment Opportunity Commission said “…the ADA does not protect individuals who are currently engaging in the illegal use of drugs…” However, the EEOC considers past drug addiction a protected disability, so employers should avoid questions about past addiction to illegal drugs or participation in a rehabilitation program.

Many states and U.S. territories have their own laws and regulations dictating when and how workplace drug testing should be carried out. Some also require state and local contractors to develop drug-free workplace policies similar to those under the federal Drug-Free Workplace Act. No one set of rules and regulations applies throughout the country. Some states, such as Louisiana, allow drug testing in virtually every type of business and in both the public and private sectors. Others, such as Maine, restrict who can be tested, how they can be tested, and what kinds of rehabilitation and disciplinary options can result from a positive test.

Employers can take several simple steps to avoid legal problems with their drug testing policy:

• Consult an employment lawyer whenever you introduce a new drug-free workplace policy or change an existing policy.
• Make sure your drug-free workplace policy clearly stipulates penalties for violations. If your policy includes drug testing, spell out exactly who will be tested, when they will be tested, and what will happen to employees who test positive.
• Make sure every employee receives and signs a written copy of your drug-free workplace policy. Verbal agreements and unsigned agreements have little legal standing.
• Make sure that you, and all your supervisors, receive proper training in how to detect and respond to workplace drug and alcohol abuse.
• Maintain detailed and objective records documenting the performance problems of all your employees. Such records often provide a basis for referring workers to employee assistance programs.
• Never take disciplinary action against a worker or accuse a worker of a policy violation simply because that employee is acting impaired. Instead, try to clarify the reasons for the employee’s impairment. If drug testing is a part of your workplace policy, obtain a positive test result before taking any action.
• Never accuse or confront an employee in front of coworkers. Instead, try to stage all discussions someplace private, with another manager present to serve as a witness.
• Never single out an individual employee or particular group of employees for special treatment — whether it is rehabilitation or punishment. Inconsistencies in policy enforcement may lead to discrimination charges.
• Try to get to know your employees as much as possible. This may help you more quickly identify workers who are in trouble or developing substance abuse problems.
• Most important, try to involve workers at all levels of your organization in developing and implementing your drug-free workplace policy. This will reduce misunderstandings about the reasons for a drug-free workplace program and help ensure that policies and procedures are fair to everyone.

The U.S. Department of Labor’s (DOL) Working Partners for an Alcohol and Drug-Free Workplace Web site provides employers with free resources and tools to help establish and maintain drug-free workplace policies.