Wholesale & Distribution International - Winter 2018 - 5
WHAT ABOUT DRIVERS?
KNOW THE LAW
WHAT DO THE COURTS SAY?
AN UNCERTAIN FUTURE
In addition to the laws themselves,
companies should have their ear to the
ground for court decisions interpreting
these fairly new laws - especially as to
how these laws impact employers.
Until recently, the general advice was
that employers did not have to accommodate medical marijuana use by employees, regardless of whether the employees
had a disability that would normally trigger an accommodation under the Americans with Disability Act. The general
basis for this position has been that
marijuana continues to be classified as a
Schedule I of the Controlled Substances
Act. In other words, it is still illegal under
federal law. Accordingly, employers have
been arguing - with some success - that it
would not be a "reasonable" accommodation to allow someone to work under
the influence of an illegal drug.
However, a few recent court decisions
out of Massachusetts and Connecticut
have indicated that some jurisdictions
might expect businesses to engage in the
interactive process with employees and
possibly even require employers to allow
medical marijuana usage. These court
decisions are definitely causing alarm
amongst manufacturing companies.
Going forward, companies should be
sure to stay on top of any legal developments on this issue in any jurisdiction
where they operate. Likewise, having a
clear company policy addressing medical marijuana usage is important to
communicate expectations to employees and to ensure that your preferences
on this issue are being enforced consistently. If you do have an employee or
potential employee who requests an accommodation to use medical marijuana,
consider your options before deciding.
Certainly, if the person drives a truck
or operates heavy machinery, an accommodation may simply not be possible.
However, for other positions, you may
want to inquire whether a different prescription would provide the same benefits that marijuana provides. Finally, you
may consider granting the accommodation. As the law continues to evolve on
this issue, you may find your own policies need to evolve as well. q
Yes, the state of the law is confusing.
What this means for companies is that
you should stay up the date on the laws
in any state where you operate. California became the first state to legalize
medical marijuana more than twenty
years ago. Since then, twenty-eight additional states, plus the District of Columbia, joined its ranks by passing laws
legalizing marijuana for medical use.
Eight states have now also legalized recreational marijuana use. Realistically,
these numbers will continue to increase
in the years ahead.
Further, some states specifically provide employment related legal protection for marijuana users. For instance,
in Pennsylvania employers are not allowed to discriminate against employees based upon the fact that they have
been certified to use medical marijuana,
just as manufacturers are prohibited
from discriminating against employees
based upon their age, sex or race. In other
states, such as Florida, there are no such
anti-discrimination provisions. In fact, in
Florida and elsewhere, the medical marijuana laws provide specific carve outs
stating that employers are still free to
implement and enforce drug-free workplace programs and that they do not need
to accommodate marijuana use in the
workplace or allow an employee to work
under the influence of marijuana.
Simply put, what companies may legally do on this issue depends largely on
state law - and the laws vary on some
very important provisions. Further, as
society becomes more accepting of marijuana use, the laws have trended toward
becoming more accepting as well. Therefore, it is likely that more states will pass
marijuana laws in the future, and existing
laws may become more permissive towards marijuana users.
Fortunately, for truck drivers, the issue
becomes simplified. There are specific regulations from the Department of
Transportation prohibiting drivers from
operating vehicles while under the influence of certain substances. Likewise, for
employees who operate heavy machinery, or otherwise have safety sensitive
positions, manufacturers are warehouse
operators have a strong argument that
safety concerns trump a need to accommodate marijuana use. However, for positions that don't have safety issues, such
as desk employees, companies may find
this issue is not so clear-cut.
Lisa A. McGlynn is an attorney in the Tampa
office of Fisher Phillips, representing employers in all areas of labor and employment
law. She may be reached at 813-769-7518 or
Winter 2018 www.wdimagazine.com