As in other industries, mining companies must contend with employees and contractors using or being under the influence of illegal drugs in the workplace. Marijuana is one of the most prominent substances detected in drug screens of job applicants. Mine operators have routinely made blanket prohibitions against marijuana for safety and legal compliance. But what about marijuana prescribed for medical purposes? And what about recreational use of marijuana during non-work hours in states that allow marijuana use without a prescription? These are just a few of the issues faced by employers.
Twenty-three states and the District of Columbia have authorized medical use of marijuana and 20 states have decriminalized marijuana possession apart from medical use. Alaska, Colorado, Oregon, and Washington have legalized recreational use. Fifty-seven percent of the U.S. population resides in states where marijuana may be used within state-imposed limitations without adverse legal consequences.
Regarding employment policies, Colorado is illustrative of state reluctance to interfere with employer discretion. Employers may apply their traditional drug policies and testing procedures to all employees, even those with a medical prescription for marijuana because: (a) state laws do not require employers to allow marijuana use or permit persons to possess marijuana or be under its influence in the workplace; and (b) marijuana remains illegal under federal law. An amendment to Colorado’s state constitution expressly allows employers to continue with drug-testing policies that make no exception for marijuana.
On June 15, 2015, the Colorado Supreme Court decided an employment discrimination case involving a statute that protects employees from adverse employer action “due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” In Coats v. Dish Network LLC, 303 P.3d 147 (Colo. 2015), the court held that Colorado’s lawful off-duty conduct statute does not prohibit employers from discharging employees who choose to use marijuana for medical purposes off-duty and away from their employers’ places of business, even when there is no evidence that such use affected job performance or that an employee was otherwise impaired while at work. The court held that marijuana remains unlawful under federal law, and, as a result, an employee cannot rely on the lawful off-duty conduct statute as a basis for consumption in violation of an employer’s zero-tolerance drug policy.
Because marijuana remains illegal under federal law, companies have every reason to test for and bar employees from using it. Marijuana prohibitions that employers have long considered prudent and necessary remain lawful. They are not controlled by what states authorize for medical or recreational purposes.
In addition, medical or recreational use of marijuana as legalized under state law has not been addressed in any regulation issued by the Mine Safety Health Administration (MSHA) or the Occupational Safety and Health Administration (OSHA). Neither agency has issued guidance on how off-duty use of marijuana affects workplace safety. However, MSHA and OSHA regulations make it clear that substances that are hazardous at work or illegal under federal law are prohibited.
The Federal Mine Safety and Health Act
In the mining industry, MSHA regulations for metal/nonmetal mines provide:
Intoxicating beverages and narcotics shall not be permitted or used in or around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job.
While marijuana is not considered a narcotic, MSHA has interpreted and enforced this regulation as prohibiting persons from using or being under the influence of marijuana on mine property. Mine operators are under a legal obligation to prohibit marijuana use that could affect work performance and safety on the job. MSHA has never faulted employers for zero-tolerance drug screening policies, but the issue of whether trace elements of marijuana found during a medical screening constitute being “under the influence” is still unclear.
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for disabled persons. Employers have been sued by employees for failing to reasonably accommodate their disability. Government agencies also have been targeted for failing to provide public accommodations for persons with disabilities.
The Ninth Circuit Court of Appeals considered a case in 2012, where a group of disabled individuals challenged actions by the city of Costa Mesa, California, to bar medical marijuana dispensing facilities. The plaintiffs claimed that they were being deprived of public accommodation for medication essential to relief of pain. Here is what the court said:
We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines “illegal drug use” by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.
All employers subject to drug control mandates of agencies such as MSHA, OSHA and the U.S. Department of Transportation remain unaffected by state laws. Only if and when federal laws change might different rules apply. It is not likely, however, that changes would limit an employer’s ability to restrict marijuana when it could affect worker safety or proper job performance. Any company policy prohibiting illegal substances that impair an employee’s work performance, especially in safety or security-sensitive positions, is necessarily within the employer’s discretion. Prescription drugs, including marijuana, may be legal but still unacceptable in the workplace if they impair or adversely affect the employee or other workers, or pose harm to the employer’s property.
Laws regarding marijuana, including federal laws, will continue to evolve. In May 2015, the Senate Appropriations Committee voted to back the Veterans Equal Access Act (HR 667), which would authorize physicians employed by the Department of Veterans Affairs to prescribe medical marijuana to veterans who are suffering from post-traumatic stress disorder or chronic pain. Supporters of the legislation argue that marijuana is more effective, less debilitating, and less addictive than many prescription drugs.