RISK MANAGEMENT
Notably, the vast majority of cases have ruled in favor of employer
discretion regarding whether to discipline or terminate medical
cannabis users. Even when anti-discrimination provisions were
implicated, courts have consistently left open the possibility for an
employer to take action against medical cannabis users in safetysensitive
positions (See Barbuto v. Advantage Sales and Marketing,
LLC, SJC – 12226; July 17, 2017).
On its face, these decisions make sense. There are some industries
where workplace drug testing is increasingly rare – such as
in the technology sector where millennial workers are more indemand
and others where the employer approaches cannabis as a
substance scientifically less harmful than alcohol or more dangerous
drugs. Yet, safety-sensitive positions such as construction sites,
medical facilities and large warehouses will always require more
stringent workplace standards.
Zero-tolerance policies and drug testing
There are no medical or recreational cannabis states that prohibit
employee drug testing. Yet, many include anti-discrimination laws
for medical cannabis users. Practically, this means employers
should not hire, fire or discipline applicants or employees solely
because they are medical cannabis patients. If a job applicant
discloses their status as a medical cannabis patient, generally the
employer should not use this status, or the possession of a medical
cannabis card, as the reason for the employment decision.
Whether the employer may discipline or terminate in the event of
a failed drug test is precisely the question raised in Noffsinger, and
employers should consult with legal counsel in their respective
state to ensure compliance.
Safety-sensitive positions and worksites: Protecting
your business and your employees
1. Review workplace policies: Thoroughly reviewing your
workplace policies is the single most important thing you can
do to protect your business with regards to cannabis use and
employee testing. Look for language that employees can easily
understand and follow, and protocols that reflect the nature of
the business. Consider whether zero-tolerance will be applied
to both safety-sensitive positions and those that are not, how
post-accident testing will occur and whether drug testing will
be used only upon hiring or throughout employment. If possible,
provide access to support for employees with substance
abuse problems.
2. Consistency: A business should ensure not only consistency
in the treatment of suspected substance abuse regardless
of the substance, but consistency in staff training and management
enforcement. Inconsistent treatment can quickly
become the basis for legal action against an employer.
3. Protecting the workplace and complying with the law:
Carefully examine the impact of any cannabis impairment at
the worksite, and design employee policies that ensure optimal
safety for the workplace. Before finalizing new policies
and procedures, confer with employment counsel to ensure
compliance with state laws and legal decisions.
Although state and federal workplace laws will continue to
evolve, employers should expect that workplace safety will continue
to be the primary focus when considering how to manage cannabis
use by employees. Employer discretion to implement drug
testing and zero-tolerance policies will continue in most states but
consult with counsel to ensure strict compliance in these quickly
evolving times.
We look forward to further discussing this issue with you in
Phoenix in May. t
Bob Morgan, J.D. is a partner at Benesch Law. He can be reached
at 312-624-6356 and at bmorgan@beneschlaw.com. Morgan is a
regulatory healthcare attorney who served as the first Statewide
Coordinator for the Illinois Medical Cannabis Program. He counsels
businesses and governments on cannabis laws and regulations.
Morgan also serves as an Illinois State Representative (58th
District). Rick Kalson is a partner at Benesch Law and a vice-chair
of the PDCA’s Contracts & Risk Committee. He can be reached at
614-223-9380 and at rkalson@beneschlaw.com.
joannawnuk/123rf
112 | ISSUE 1 2020 www.piledrivers.org
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