RISK MANAGEMENT
Managing the
Unmanageable
Workplace safety in a
cannabis revolution
By Bob Morgan, Esq. and Rick Kalson, Esq., Benesch Law
At PDCA’s Annual Conference in Phoenix in May,
we will be addressing the ability of a contractor to
regulate, monitor and address potential marijuana
use by its employees, especially in states where medical marijuana
use and/or recreational marijuana use may now be legal. There is
certainly no disputing the vast uncharted waters for pile driving
contractors around the country as they attempt to navigate
cannabis laws and regulations that are changing daily. Workplace
safety, employee drug testing and the fluctuating legal status of
cannabis are creating uncertainty on safety-sensitive jobsites. Pile
driving is an extremely complex construction process. How can a
pile driving contractor protect its employees and worksite while
adapting to the increasingly accepted use of cannabis – medical
or recreational?
Quickly evolving laws
There are now 33 states that have legalized medical cannabis and
10 that have legalized recreational cannabis, with more soon to
come. Many of these state’s laws have employer protections for
safety-sensitive jobs, and generally allow an employer broad discretion
to enact and implement zero-tolerance policies. For example,
Arizona allows employers to discipline an employee for possessing
or using marijuana on company premises or during work time,
even if that employee is authorized to use medical cannabis (A.R.S.
Sec. 36-2814(B)). However, note some contradictory caselaw in
states such as Rhode Island (See Callaghan v. Darlington Fabrics,
C.A. No. P.C. 2014-6680, where an employer was found to have
violated the state medical cannabis law for failing to hire a job
applicant that had a medical cannabis card and stated she could
not pass a drug test) and Connecticut (Noffsinger v. SSC Niantic
Operating Company, LLC, 2018 WL 4224075, at 1, D. Conn. Sept. 5,
2018, where an employer was found to have violated the state medical
cannabis law when refusing to hire a medical cannabis patient
who tested positive on a pre-employment drug test).
Tyson Anderson/123rf
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