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Are Employers’ Rights Up In Smoke?

The legalization of marijuana in some markets is creating concerns for roofing contractors.

July 17, 2017
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Due to the changing laws regarding marijuana use, roofing contractors may be wondering whether John Smith can smoke marijuana during his lunch break. Or whether employees can take their “medicine” before heading into work. In addition to the concern of having employees high on the job, employers are likely wondering how they’re able to enact policies to provide a safer work environment by barring the use of marijuana on the job. This article will help to explain the different rights and options of both the employer and its respective employees.

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Marijuana laws have transformed rapidly in the past few years. As of the most recent election cycle, 26 states and the District of Columbia have permitted either recreational or medicinal use of marijuana. During the 2016 election cycle, Maine, California, Massachusetts and Nevada joined Washington, Colorado, Oregon, Alaska, and the District of Columbia in legalizing marijuana for recreational use.

Also, during the 2016 election cycle, Florida voters authorized the use of marijuana for medicinal purposes by approving Amendment 2. Under Amendment 2, a person may possess and use marijuana to treat debilitating medical conditions such as cancer, epilepsy, glaucoma, HIV/AIDS, ALS, Crohn’s and Parkinson’s diseases, multiple sclerosis, and other medical conditions of the same kind or class. “Medical conditions of the same kind or class” will likely result in an abundance of licensed medical marijuana users because doctors will be able to use discretion in their determination of whether or not to issue a medical marijuana card. Amendment 2 was scheduled to go into effect in January, but was delayed by different state measures. Rules and regualtions for implementaion are expected this month. Those without a medical license to possess marijuana may face fines or imprisonment for the possession or use of marijuana. However, many parts of Florida have decriminalized marijuana possession — removed the criminal penalty and instead instituted civil fines — which may increase the likelihood of marijuana usage.

While states allow recreational and medicinal marijuana use, the drug is still illegal at the federal level. This divergence between state and federal law creates a variety of unique issues for employers. Due to marijuana being illegal at the federal level, those working under a government contract or for a federal employer are prohibited from using marijuana in any way (even if it’s for medicinal purposes). This prohibition extends to both onsite use as well as off-site and at-home use. Accordingly, under federal law, the roofing contractor has the ability to fire an employee for failing a drug test under the aforementioned federal work conditions.

The outlook under federal governmental contracts and for federal employers is clear. Handling marijuana usage for roofers on private and state projects, however, is quite hazy (no pun intended). Two of the biggest issues still up in the air include: employees arriving to the job under the influence of marijuana, and zero-tolerance drug policies. Florida’s Amendment 2 doesn’t create a special class for medical users nor does it require employers to provide special accommodations for medicinal users. Additionally, a number of other state courts have upheld employers’ rights to continue to implement zero-tolerance policies. This results in employers likely being able to continue to enforce their zero-tolerance drug policies.

Due to marijuana causing impairment to the motor functions of the user, employers who have employees that operate machinery, vehicles, or other types of equipment will certainly not want them doing so under the influence of marijuana. Further, there’s presently no method for testing whether an individual is currently under the influence of marijuana. Drug tests simply show that the individual has used marijuana within the past 30 days (the length varies by different testing methods). These are further reasons to continue to drug test employees and enforce zero-tolerance policies when it comes to onsite safety.

While other state courts have upheld an employer’s right to discipline employees for failing a drug test for marijuana use, employers should still be wary of how courts will respond to the implementation of both recreational and medicinal marijuana laws in their respective states. Further, state legislatures and other administrations have stated they will continue to provide updates and guidance on how marijuana laws will affect roofing employers and employees.

In my next column for Roofing Contractor, I’ll discuss a further complication to the new recreational and medicinal marijuana laws — OSHA’s new anti-retaliation rule and employer’s right to drug test.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

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