Labor and the Law By Mark A. Lies II and Kerry M. Mohan Weed and Weapons: Workplace Challenges Editor’s note – Mark A. Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related employment law and civil litigation. Kerry M. Mohan is an associate with Seyfarth Shaw focusing on occupational safety and health, traditional labor matters, and related employment law and civil litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information. The Occupational Safety and Health Administration requires employers to provide a safe workplace for employees, which includes, among other things, ensuring employees are not impaired in a manner that creates a safety hazard to the employee and other employees, as well as protecting employees from workplace violence. However, new laws regarding medicinal marijuana and the right to carry firearms, including concealed firearms, have created additional uncertainty and anxiety for employers, human resource and safety professionals, and supervisors. These new laws have created uncertainty over a number of issues, including, but not limited to, when an employer can test an employee for suspected marijuana use, whether an employer can lawfully discipline employees for marijuana use, whether an employer can prohibit employees from bringing personal firearms to the workplace, and whether an employer can prohibit an employee from bringing personal firearms in company vehicles. This article addresses potential liability issues employers may face regarding employee drug use and testing and firearms in the workplace. Since each state has its own laws regarding these two issues, the article has been formatted into questions and answers to provide basic knowledge on these issues. The authors have assisted employers in identifying the specific requirements of state law in these areas and advising about compliance requirements in particular situations. Weed in the Workplace Q. Is medical marijuana legal where I live? So far, 20 states and the District of Columbia have enacted laws that decriminalize or authorize, to varying degrees, the use of marijuana for medical purposes. Those states are Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Under federal law, use of marijuana for medicinal purposes is still unlawful. Q. Can an employer prohibit its employees from using medical marijuana? Most states permit an employer to establish reasonable rules regarding the use of medicinal marijuana. However, the states with the most recent medicinal marijuana acts, such as Delaware, Illinois, and Arizona, have explicitly prohibited employers from discriminating against medicinal marijuana users on that basis alone. In those states, an employer is permitted to prohibit medicinal marijuana use and discipline an employee for failing a drug test if it would put the employer in violation of federal law or would cause the company to lose a federal contract or money. Q. Are medicinal marijuana users protected by disability discrimination laws? Medicinal marijuana users have continually challenged policies prohibiting marijuana use on the basis of disability discrimination. Thus far, federal courts have found that marijuana use is not protected under the Americans with Disabilities Act (ADA) because marijuana use remains unlawful under federal law. Employers must be aware that if an employee discloses that he/she is legally authorized to use medicinal marijuana that such disclosure could also involve revelation of an underlying disability that is protected under the ADA. Thereafter, if the employer decides to take any form of adverse employment action against the employee, it must be prepared to demonstrate that the adverse action was based upon a legitimate business reason having no relationship to an actual or perceived disability. In addition, because states (and many municipalities) have their own anti-discrimination laws, an employer may run afoul of a state’s disability discrimination law by disciplining medicinal marijuana users for off-the-clock use. Finally, many state privacy laws can protect employees for lawful conduct outside of working hours as long as such conduct does not create a hazard or violate any legal obligations at the workplace. Q. Can an employer discipline an employee for having marijuana at the worksite or for being under the influence of medicinal marijuana while at work? Yes. Even the most pro-user medicinal marijuana statutes permit employers to properly discipline employees who are found to have medicinal marijuana at work or who are under the influence of or impaired by medicinal marijuana at work. Q. How can an employer determine whether an employee is under the influence of medicinal marijuana? Obviously, medicinal marijuana use is easy to spot when an employee smokes or ingests marijuana in front of a supervisor, which is certainly not the typical scenario. However, determining whether an employee is under the influence or impaired may be difficult to do under the circumstances, and may be even more difficult for untrained staff. Thus, employers must train supervisors, managers, and foremen on how to identify behavior that demonstrates potential impairment and the proper procedures for responding to and investigating alleged instances of impairment Further, employers should develop a written 32 December 2013 Render www.rendermagazine.com
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