Human Resources

SBS 30: Marijuana – The ADA v.s. OSHA

Hey Compliance Warriors!

Today we have a short discussion on navigating employer rights when dealing with someone who’s coming to work impaired by the use of medical or legal recreational marijuana.

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Enjoy and until next time, Be Audit Secure!





Lisa:  Today we are talking about marijuana usage in the workplace.


Mason: Yup. A lot more States are becoming legalized, now. And so we wanted to kind of give an update on, we’ve touched on it a little bit in previous podcasts just on the subject, but we’re wanting to talk about specifically when outside recreational use conflicts with inside the workplace and what are some good best practices.


Lisa: Yeah, absolutely. Because we know that, you as an employer, you still have the right to say people cannot work under the influence. You can’t smoke it at work, you can’t vape it at work, you know, whatever the thing is. And it’s really no different than, taking opioids at work. So, maybe you have a prescription for them. Maybe you are treating a legitimate condition. Well that’s cool. But if it impairs your ability to perform the job safely or perform the job at all, that’s when those lines kind of get a little bit blurred.


Mason: Yep. Exactly. Let’s talk about some just examples. For instance, guy has a marijuana card, totally legal. He’s, got to do this for his anxiety or whatever medical condition he’s treating comes to work, drives a forklift. That’s his job. What would be the kind of practice here for the employer to take?


Lisa: Okay, basically unless the employee looks impaired or is acting impaired. We’re not just going to be like, Hey, are you smoking? But there’s going to be something that triggers the inquest, there’s going to be some sort of reasonable, suspicion. But let’s just say that it has been identified now that he has THC in his system. He has the marijuana card and he’s about to sue you for ADA violations because you know you’re discriminating against him because he this issue that he’s treating well, but he drives the forklift like you said. So, what if his reflexes are not what they should be, and he can’t raise and lower and back and forward and turn in the way he needs to. And he’s knocking out windows and people and hitting somebody’s car in the parking lot.


Lisa: You know, like all of these things could happen.


Mason: Just because you have that card doesn’t negate OSHA.


Lisa: Right, Exactly. It’s not just ADA that we think about with this kind of stuff. We have to think about OSHA because OSHA, even if it’s not a forklift regulation, let’s just say it’s anything, OSHA has what they call the general duty clause. And that clause States that employers have a general duty to keep employees safe. And what it basically translates down to is even if OSHA didn’t write a specific statute about your specific situation, and you as an employer are not doing everything you can to keep workers safe, you’re hung out to dry.


Mason: You’re liable.


Lisa: Yeah, let’s say somebody has a marijuana card or maybe they don’t have a card. Maybe you’re in a state, that’s legal. You’re in Colorado or Washington or you’re in one of these States and so they smoked pot before they come to work and now, they’re at work, but they’re not smoking at work. So, what they did off duty might not be any of your business under law. Right. But when they bring it to work and now they can’t perform the essential functions of their job because they’re stoned. Well, see you have rights there.


Mason: It’s just like coming to work drunk or taking some prescribed pills or things like that for pain or whatever it is. You still have your rights there in place as an Employer.


Lisa: Yes, Employers have to look at marijuana these days as the same as alcohol, like you just pointed out, alcohol is legal. If people drink off duty, that’s none of our business. But when they drink before work and come in drunk, that is our business. Right and so the same way with medication. If you have a legit medication that makes you drowsy, well that’s no different than having a legit marijuana card but how it affects your work may render it, untenable like maybe it’s not safe or maybe they just can’t do the job.


Mason: That’s Right


Lisa: And so of course we want to take ADA into consideration. We want to look at, is there a disability here Can we make an accommodation? But even the ADA says that the accommodation has to equip the worker to accomplish the essential functions of the job. And if you’re too impaired with whatever the accommodation might be, then you’re not going to be able to, keep that person on. Now the other thing too is that you can set up an employee assistance program. So, you could say, we have some counseling for you. We want to sponsor you through some sort of a drug treatment program. Or if you think that’s appropriate or if that is coming into view that that would be inappropriate thing. And then the employee can say yes or no to that but, the key here is document everything you do. And don’t let yourself be buried by fear from all of these. Cause there have been court cases where employers are losing right and left because somebody has THC in their system, and they want to fire them because they have a zero-tolerance policy. But it doesn’t apply in this case because it is something that’s protected, and the employee was not harming themselves or the safety of others or impaired at work or they could accomplish their essential functions. So, employers, we have to walk that line.


Mason: That goes into kind of older school thinking. We’re not sitting here, saying marijuana usage is bad. It treats A lot of good things, but at the same time just don’t take it overboard. But you do have rights as an employer. If a person’s coming to work impaired as you would if like we mentioned, if they were coming to work drunk or something like that, usually these employees are not going to come to work like that. But once in a while you’ll have a situation like this and high-pressure situations and things like that and whatever it is and do your best to work with the employee on fixing the problem before you just terminate them kind of thing.


Lisa: That’s the key. You’ve got to walk through the steps, and you have to consider every law. And so, but the law we most often forget about is OSHA. So, OSHA and ADA, they can have an understanding between each other and there are lines that can’t be crossed on both sides. So, we as employers sometimes we have to get legal counsel involved. We have to kind of have a lawyer take a look at it, someone local to your area because they need to know your local statutes in your state or your city or maybe your County. And, they can advise you on the specifics but, we just can’t let ourselves get paralyzed.


Mason: Yeah, a good place to start with it is OSHA and keeping everybody safe first and foremost. But with OSHA, not just immediately terminating that person for this incident. And then you can go from there with the ADA. You just want to keep everybody safe.


Lisa: Yeah, and know, your drug testing statutes too, because some States do not allow you to drug test randomly without some heavy duty, reasonable suspicion. Other States don’t care. You can drug test people whenever you want to but, know what your local state law says.


Mason: Yup. That’s right. And if you’re a member, you can write us in, and we’ll help you out with your state laws and things like that and kind of give you a little bit of guidance from our SPHR ours here.


Lisa: As a matter of fact, we just published a whole new section on marijuana laws by state. So, we’re keeping that up to date as well. Cause believe me, it’s a moving target.


Mason: Yeah, that’s right. And if you’re listening to this and you’re not a member, go to helpdesksuites.com and check it out. We’d love to have you.


Lisa: Yeah, absolutely. Well, I guess that’s a wrap for today.


Mason: Yep. Sounds good. Until next time.


Lisa: Be Audit Secure.

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