How do California’s marijuana laws affect your safety programs?
Research indicates that between 10 and 20 percent of
the nation’s workers who die on the job test positive for alcohol or other
drugs. Studies also show that when compared with non-abusers, substance-abusing
employees are more likely to be involved in a workplace accident or file a
workers’ compensation claim.
California allows the use of marijuana for medical
purposes (along with 21 other states and the District of Columbia). Will this
cause your claims to skyrocket?
State
medical marijuana laws "generally provide immunity from state and local
criminal prosecution...[but] they do not provide employment protection," said Jeff
Burgess, program coordinator, Technical Assistance for Employers in Oregon’s
Bureau of Labor and Industries. This means that employers can prohibit
employees from using marijuana while on duty, even if employees have a
legitimate medical need. Refusing to hire or otherwise discriminating against
those who use medical marijuana on their own time remains a gray area in most
states.
What Employers
Can and Cannot Do
In
an informal opinion, the Equal Employment Opportunity Commission said the ADA
does not protect individuals currently using drugs illegally. 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.
Please remember that California law also prohibits employers from asking
applicants about minor convictions for marijuana use that are more than two
years old.
If you receive federal grants or have contracts for
the procurement of property or services valued $100,000 or more, the federal
Drug-Free Workplace Act of 1998 applies to your organization. If your
organization contracts with or receives grants from the state of California,
you must certify that you provide a drug-free workplace under California’s
Drug-Free Workplace law.
If
your drug-free workplace program includes drug testing, remember that laws
designed to protect workers’ civil rights could apply. 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.
California
has stricter drug-testing laws than many other states. You can test a job
applicant for drug use only after making a job offer, but before he/she goes on
payroll. After hire, California allows random drug tests only of employees in
certain safety-sensitive positions. Court cases have generally upheld an
employer’s right to require employees to submit to a drug test if the employer
has reasonable suspicion.
To
avoid problems with your drug testing program, please consider the following
action steps:
• Put
your drug-free workplace policy in writing. Spell out any 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.
• Make
sure that all supervisors receive training in how to detect and respond to
workplace drug and alcohol abuse.
• Maintain
detailed and objective records documenting any performance problems. Such
records often provide a basis for referring workers to employee assistance
programs.
• 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.
• 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.
• Have
an employment attorney review your policy before implementation.
For
more suggestions on improving workplace safety, please contact the PCOC Insurance
Program department of EPIC (formerly The Leavitt Group) at (877) 860-7378 or,
email us @ ProPest@epicbrokers.com.