High times in the workplace

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High times in the workplace

By Andy Carlo - 03/01/2018

Throw on Black Sabbath, roll a joint, drive to work, have a good smoke and start your day free and easy.

Is this about to become a common routine for some employees in the LBM industry in the coming years, particularly with more states and municipalities legalizing recreational and medical marijuana? Will they be making deliveries behind the wheel of a flatbed and using state or local laws as their defense for living the high life?

Not necessarily — especially when it comes to Department of Transportation laws, which fall under federal jurisdiction. 

As of January 2018, 29 states and the District of Columbia had laws that legalize some form of marijuana use for medical purposes. Meanwhile, nine states allow recreational use of marijuana, including: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington state, as well as Washington, D.C. Also, 13 states and the U.S. Virgin Islands have decriminalized marijuana use.

Despite all the changes in regional regulation that support marijuana use, especially when it comes to getting high at home, they do not support the use of marijuana by drivers and other safety-related positions. 

According to the DOT, marijuana remains illegal under federal law. The agency says any employees who are in safety-sensitive positions remain subject to federally mandated drug testing. This includes pilots, school bus drivers, train engineers and operators of commercial vehicles who remain prohibited from the use of marijuana. 

But there’s bound to be an employee who argues that they received a thumbs-up from their doctor and have a medical prescription that allows them to use marijuana. That’s where doing your homework as a business owner or manager comes into play.

According to Angelo Fillippi, from the law firm of Kelley Kronenberg, it’s pertinent that businesses put their own regulations on the books and consult an attorney in the process. Kelley Kronenberg operates nine firms in Florida, as well as locations in Atlanta and Chicago. 

Fillippi recently discussed the matter at the 2018 International Builders’ Show in Orlando, Fla., during a seminar titled “Dazed and Confused? The Buzz Surrounding Legalized Marijuana in the Construction Industry.”

Fillippi argues that in order to counter any challenges from employees that might stem from a prescription, business owners should clearly define in the employee handbook any intolerance for employees using marijuana, even if it has been prescribed. Internal regulations drawn up by the business should be reviewed by an attorney. 

“Given the nature of the construction industry, it would be wise that you adopt and implement a zero-tolerance drug policy,” Fillippi said. 

He advised that the policy should state that possession, use, solicitation or impairment from marijuana use in the workplace will not be tolerated. And while it can be prescribed, it will be treated like any other lawfully prescribed drug that will impair functioning at work. Handbook regulations should also outline that the workplace will not tolerate impairment from drugs, including reporting to work impaired. 

“One misconception is that medical marijuana is not as euphoric as recreational marijuana,” Fillippi said. “But medical marijuana is often just as strong or stronger than the recreational type.”

Firing an employee for marijuana use becomes another matter entirely. There must be a firm drug test performed along with having a clear and concise drug policy in the books. 

“There is no uniform answer to whether you can fire an employee for testing positive for marijuana,” Fillippi said, while noting that it’s strongly advised to seek legal counsel for guidance.