IRAC: many serious adverse health and safety consequences.

 

 

 

IRAC:
Should company policy override state law?

Michele
Dahlen, CPA

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HRCU
606: Ethical and Legal Leadership

Professor
Sam Bresler

January
26, 2018

 

Issue:             Should company policy override
state law?

Rule
of Law  As a general rule, company
policies cannot override the rule of law. 
With recent changes in marijuana decriminalization and legalization, and
marijuana use is spreading across the country. While these changing marijuana
laws may appear to affect alcohol and drug-related policies, even with these
new laws in place, marijuana users are not a protected class. Employers
generally have the right to terminate employees for using marijuana even
outside of business hours.  In the United
States most organizations follow an “at-will” employment policy where companies
can fire workers for almost any reason. 
This means that it would be acceptable for an employer to fire an
employee for marijuana use, regardless of state or federal law. (Guerin, L.,
2014)

The
website of the National Drug-Free Workplace Alliance (http://www.nwda.org)
provides information about the Drug-Free Workplace Act of 1988.  The Act requires employers and contractors
who work with federal agencies to agree that they will provide drug-free
workplaces “as a precondition of receiving a contract or grant from a Federal
agency.”  In the text Alexander and
Hartman write the Drug-Free Workplace Act of 1988 “authorized the drug testing
(also called biochemical surveillance , in more legalistic terms) of federal
employees under certain circumstances.” (Alexander and Hartman, 2014, p. 170)

Section
12114 of the Americans with Disabilities Act of 1990 also has an impact on
employer drug and alcohol policies.  The
Act allows employers to prohibit the illegal use of drugs and the use of
alcohol at the workplace by all employees. 
The Act also gives employers the right to release or deny employment to
persons who use illegal drugs. (www.ada.gov)

Analysis         It might seem irrational for an
employer to ban employees from using marijuana or other drugs even on their own
free time, but for certain classes of employees, such a policy makes
sense.  If an employee uses marijuana but
gets into a car accident at work, the employee will have no way of proving that
they weren’t under the influence when accident happened.  By having a strict policy prohibiting drug use,
even after hours for employees, the company could attempt to use the policy as
a defense against any liability.

Drug
and alcohol use and misuse, both legal and Illegal, have many serious adverse
health and safety consequences. According to the Substance Abuse and Mental
Health Administration (SAMHSA). “of all drug users, 68.9% are employed and
active in the workplace.” (Patterson, E, 2018) 
Using drugs impairs decision-making abilities.  There are many ways employee substance
abusers can negatively impact employers. Employees who come to work under the
influence of drugs or alcohol run the risk of causing serious accidents.  Substance abusers also hurt employer’s bottom
line in terms of limited and poor performance and decreased productivity.  One way an employer can determine if
employees or job applicants are using drugs is by requiring drug testing.  Drug testing methods have advanced in recent
years and can now provide reliable evidence about the use of alcohol and drugs.  As an employee, you generally have the option
to refuse to take a drug test. But in some states, you can be fired for
refusing to take a drug test and your eligibility for unemployment benefits
will be limited.

Conversely,
there are employees who may need marijuana for medicinal purposes.  In the case of Barbuto v. Advantage Sales and
Marketing, LLC, No. SJC-12226, Mass., the Massachusetts Supreme Judicial Court
ruled that a registered medical marijuana user who was fired by her employer
for failing a drug test can proceed in state court with her disability
discrimination claim (Nagele-Piazza, L, 2017). 
The court ruled that an employee is justified to use marijuana for
medicinal purposes similar to an employee using other prescribed legal
medication.  In its ruling, the
Massachusetts Supreme Judicial Court focused their interpretation on language
in the medical marijuana act stating that lawful users can’t be “denied
any right or privilege” for such use. 
Under federal law, marijuana is still classified as a Schedule I drug (U.S.
Drug Enforcement Aadministration, 2017) and in past litigation, most states
have sided with the employer citing that as long as marijuana is illegal under
federal law, the state laws do not apply. 
However this lawsuit opens the door for disability discrimination cases
across the nation.

Conclusion   While workplace drug testing may not be for all
employers, it is one way an organization can help create a workplace free of
health and safety issues due to alcohol and drug use. Before drafting a policy,
employers may want to consider why they are testing for drugs.  There are some jobs that require a higher
level of safety for example, a truck driver or medical professional versus
someone who performs data entry in their home office.  When creating the policy, an organization
should also consider applicable laws, statutes and regulations.  As directed in the Drug Free Workplace Act of
1988, there are some federal contracts and grants which require employers to implement
drug-free workplace policies and even compel drug-testing of employees.  Employers need to be prudent and use care and
judgement in considering the various legal issues prior to implementation of
any policy related to drug use/testing. 
Once an organization establishes a clear written policy, they need to ensure
that all employees know about it, and follow through with uniform enforcement the
policy.

 

  

 

References

“AMERICANS WITH DISABILITIES ACT OF 1990, AS
AMENDED.” Americans with Disabilities,

www.ada.gov/pubs/adastatue08.pdf

Alexander, D.B., & Hartman, L. (2014).
Employment law for business (8th ed.) McGraw

Hill

“Drug Free Workplace Act of 1988.” National Drug Free Workplace Alliance,

www.ndwa.org/Editor/assets/federallaw.pdf

Guerin, L. “Employment at Will: What Does it
Mean?” NOLO, 2014,

www.nolo.com/legal-encyclopedia/employment-at-will-definition-30022.html

Nagele-Piazza,
L. “Do Employers Need to Accommodate Medical Marijuana Users?” SHRM, Society for Human Resource Management,
26 July 2017,

www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/do-employers-need-to-accommodate-medical-marijuana-users.aspx

Patterson,
E. “Workplace Drug Abuse” U.S.
Drug Enforcement Administration (2017),

www.drugabuse.com/library/workplace-drug-abuse/