Hardwood Flooring February March 2018

By Barbara Dunn O’Neal & John F. Kuenstler

as it remains a federally controlled substance. Some state laws specifically state that employers are not required to accommodate such use. However, employers should become familiar with the laws of their particular state before taking adverse action against an employee who legally uses marijuana recreationally. 5. Does that mean I can legally terminate an employee who tests positive for marijuana? It depends. Whether an employer may lawfully terminate an employee under state law depends on the state where the employee works. Some state laws prohibit employers from discriminating against medical marijuana patients who test positive for marijuana. Other state laws prohibit employers from discriminating against medical marijuana cardholders. In states without such protections, an employer most likely may terminate an employee for failing a drug test. Remember, however, employers are not required to permit the use, possession, or impairment of employees during working hours. 6. What if the employee is in a “safety-sensitive” position, such as installing flooring or driving a forklift or a truck? In most states, employers are not prevented from drug testing employees in safety-sensitive jobs for marijuana. If a job is covered by federal Department of Transportation regulations, employers can and are often required to test for marijuana. Employers also should keep in mind that the Occupational Safety and Health Act’s (OSHA’s) General Duty Clause requires employers to provide a safe workplace for their employees. This could mean that if an employer has knowledge of employee marijuana use that it arguably may not be able to assert that it is providing a safe workplace. 7. How can I determine if an employee is “impaired” at work because of marijuana use? Usually, through observation. While employment policies often prohibit employees from using drugs or being impaired at work, there is currently no drug test (other than alcohol tests measuring blood alcohol concentration) that can tell an employer whether an employee is “impaired” based on the concentration level of marijuana in an employee’s system. Some state laws have attempted to set standards for marijuana impairment, but most do not. Many employers train their supervisors to recognize observable signs of drug use, impairment, or impairment related to motor skills or decision making. 8. Could I stop testing for marijuana? Many employers have made that decision, but others such as federal and state contractors and those with Department of Transportation and other “safety-sensitive” positions may not be able to be so lenient. Consult with legal counsel to see what options may be available. 9. What steps can I take now? Educate yourself and update your policies. Employers should review state laws on medical and recreational marijuana use and make sure their policies are compliant with those laws. Employers’ policies on drug use and testing should set forth clear definitions on items such as “marijuana,” “cannabis,” “medical marijuana,” “recreational use,” “after hours,” “under the influence,” or any other terms used in the policy. Most drug-free workplace policies will prohibit activities such as use and/or possession at work, and prohibit use to the extent it interferes with performance or otherwise poses a danger to the employee or others. Employers should consult with legal counsel to ensure their policies are compliant with applicable federal and state laws.

Barbara Dunn O’Neal is a Partner with the Associations and Foundations Practice Group at Barnes & Thornburg where she concentrates her practice in association law and meetings, travel, and hospitality law. She can be reached at 312.214.4837 or barbara.dunnoneal@ btlaw.com. John F. Kuenstler is a Partner in the Chicago and Los Angeles offices of Barnes & Thornburg and a member of the Labor and

Employment Department. He can be reached at 312.338.5924 or john.kuenstler@btlaw.com. This article shall not be considered legal advice. In all cases, groups should consult their legal counsel.

the magazine of the national wood flooring association

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