Coal Age

MAR 2019

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48 www.coalage.com March 2019 legally speaking Managing the Minef ield of Marijuana by donna pryor When medical mar- ijuana first started to become legal, mine operators re- sponded in a simi- lar way. Most mines continue to have a zero-tolerance poli- cy for both applicants and current em- ployees for several reasons: being on a mine site is inherently safety sensitive; mines are regulated by the Mine Safe- ty and Health Administration (MSHA) and it does not recognize marijuana as a legal drug; and because they've always done it that way. Medical marijuana is now legal in 32 states and the District of Colum- bia. Although marijuana remains ille- gal under federal law, state laws and recent court decisions are becoming challenging for employers. In fact, many state medical marijuana laws contain anti-discrimination provi- sions that provide job protections for medical marijuana users. Companies may now need to reexamine their pol- icies, as there are now five pro-worker court decisions in five separate states that provide legal protections to em- ployees who test positive for mari- juana and have a medical marijuana card or prescription. The Massachusetts Supreme Judi- cial Court found that a legal medical marijuana user terminated by a sales and marketing company can pursue a disability discrimination claim after she was fired for testing positive for the drug. In that case, the employee was hired for an entry-level position and told her employer she was using mar- ijuana to treat symptoms for Crohn's Disease. When her pre-employment drug test came back positive, she was terminated. The court found that em- ployers must engage in the interactive process with medical marijuana users to determine if there is a reasonable accommodation. See Barbuto v. Ad- vantage Sales & Marketing LLC. In Delaware, an employee filed an action against Kraft Heinz Foods after he tested positive for marijuana in a post-accident drug test. The employ- ee was a yard equipment operator and was operating a shuttle wagon on the railroad tracks when it derailed. The employee had a medical marijuana card. The employee claimed he was discriminated against under the state medical marijuana law's anti-discrim- ination provision. The Superior Court of Delaware held that a private cause of action exists under the state's med- ical marijuana law and confirmed the federal Controlled Substances Act does not preempt the state law. See Chance v. Kraft Heinz Foods Co. In a case in Rhode Island Supreme Court, a fabric company refused to hire a paid intern after she tested positive for marijuana, after she dis- closed she had a medical marijuana card. The defendants emphasized that their manufacturing facility has dangerous equipment and expressed their concern as one of workplace safety. Finding the company violat- ed the state's medical marijuana law when it refused to hire the intern, the court noted the state law does not permit "[a]ny person to undertake any task under the influence of mar- ijuana, when doing so would consti- tute negligence or professional mal- practice." (Callaghan v. Darlington Fabrics Corp.) On February 2, the U.S. District Court in Arizona held that employees have the right to file a lawsuit under the state medical marijuana law. Ar- izona state law prohibits employers from discriminating against a person who tests positive for marijuana un- less the cardholder used, possessed or was impaired by marijuana on the job, where that belief is based on a drug test sufficiently establishing the presence of metabolites or compo- nents of marijuana sufficient to cause impairment. Because the defendant (Wal-Mart) did not present expert tes- timony regarding these drug test re- sults, the court found for the employ- ee. (Whitmire v. Wal-Mart Stores Inc.) State regulations on worker pro- tection for users of medical marijua- na vary, making compliance chal- lenging for companies operating in various states throughout the U.S. A blanket pre-employment screen- ing for applicants who test positive for marijuana may no longer be permis- sible for medical marijuana license holders. States such an Illinois, Neva- da and West Virginia also have vary- ing degrees of protections for medical marijuana users in the workplace. To the contrary, some states that have le- galized medical marijuana do not re- quire employers to accommodate an employee's use of medical marijuana. A blanket zero-tolerance policy, especially for companies operating in many states, may not be possible. Since the purpose of most compa- ny policies on drugs and alcohol is workplace safety and some states have specific carve-outs for not al- lowing employees in safety-sensitive positions to test positive for the drug, operators are wise to tie any marijua- na drug policy to the common goal of safety where possible. Operators should also closely review the state law of their operations, and develop a drug policy that is in compliance with their site's state-specific medical mar- ijuana regulations. Donna Pryor is a partner with Hus- ch Blackwell. She can be reached at donna.pryor@huschblackwell.com.

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