An worker in a safety-sensitive job who has been recognized with most cancers is chosen for a random drug check. The check outcome comes again constructive for TCHA (tetrahydrocannabinolic acid — are you sorry you requested?). The worker claims he is utilizing a authorized hashish product, not smoking pot, to assist with the ache from his medical situation. The employer permits the worker to get his urine pattern retested by a special lab. The retested pattern additionally comes again constructive. The worker is fired for violating the employer’s drug coverage.
(As an apart, the Sixth Circuit opinion was written by Raymond Kethledge, who was on President Trump’s quick listing of Supreme Court docket nominees for the seat now held by Justice Brett Kavanaugh.)
OK, again on subject. What went incorrect for this employer?
Amongst different issues, the plaintiff was utilizing a product known as “Free Hemp,” which he believed may alleviate his ache. He was not smoking pot, he mentioned, and the lively ingredient in Free Hemp is THCA, not THC. In accordance with Leafly, “THCA shouldn’t be intoxicating if ingested. Chemically, it has a further molecular carboxyl ring, which prevents it from binding to receptors within the mind answerable for feeling excessive.” (I am unable to vouch for the Leafly web site, so consider this at your personal threat.) Free Hemp was a authorized product in Ohio, so the plaintiff was not breaking the legislation through the use of it.
Even when all that is true, the employer argued, we had an trustworthy perception that he was underneath the affect of marijuana once we fired him, which implies we did not unlawfully discriminate in opposition to him or refuse to offer an inexpensive lodging. As already famous, the Sixth Circuit did not purchase what the employer tried to promote.
Situations like this are going to develop into more and more widespread as medical marijuana and non-prescription use of authorized hashish merchandise proceed to develop into widespread. For employers who need to shield themselves, listed here are just a few solutions:
No. 1: Put a coverage in place earlier than one thing occurs. When you have the time to assume issues via, develop a normal coverage on the usage of authorized merchandise which may impair work efficiency or create a security hazard. Notice that you could be want one coverage for safety-sensitive jobs and a special (extra lenient) one for jobs that aren’t safety-sensitive. I typically recommend publishing the coverage, ready a month or so, after which imposing it. The primary cause for the month-long wait is that it could take that lengthy for marijuana to get out of workers’ programs.
No. 2: When you have a no-cannabis coverage in a state the place the usage of hashish is authorized, then you’ll not have an issue with the People with Disabilities Act. That is as a result of the ADA doesn’t shield “present customers of unlawful medication,” and marijuana continues to be an unlawful drug underneath federal legislation. It is also authorized to adjust to different relevant federal legal guidelines that prohibit marijuana use, just like the laws of the U.S. Division of Transportation.
But when your state has authorized hashish use and its personal disability-rights legislation, beware. You could have to be prepared, underneath state legislation, to think about permitting workers to make use of hashish merchandise as an inexpensive lodging for his or her disabilities. Additionally, in case you take motion in opposition to any workers for utilizing authorized hashish merchandise, you may have publicity underneath your state’s “lawful merchandise” statute in case your state has one. Roughly 29 states have legal guidelines that typically say an employer can not take motion in opposition to an worker based mostly on the worker’s lawful use of lawful merchandise throughout non-working hours. The legal guidelines had been initially meant to guard tobacco customers (bear in mind them? I do not), however they might additionally arguably apply to customers of authorized hashish merchandise or authorized marijuana.
No. 3: Notice that the “retest” choice is pointless when an worker has used authorized hashish merchandise. Many state legal guidelines give an worker with a constructive drug check the best to have the identical pattern retested by a special authorized laboratory. Retests may be a good way to catch testing and lab errors, however they don’t seem to be going to assist with an admitted hashish consumer who assessments constructive for marijuana. The explanation? After all the retest will come again constructive! Your worker has already admitted to utilizing authorized hashish! The lab did not mess this up. In these circumstances, a retest is a waste of money and time.
No. 4: As an alternative of a retest, attempt these:
Ask the worker to herald a word from a well being care supplier. Even when the hashish use is unprescribed, the HCP may be capable of affirm that the worker wants an over-the-counter product for ache administration and that hashish merchandise may be useful for that goal. It might even be that the HCP is the one who beneficial that the worker use these merchandise. If you cannot get a word from an HCP, you may be capable of get a receipt from the dispensary.
Primarily based on security concerns, have interaction within the interactive course of with the worker and decide whether or not an inexpensive lodging may be made. If the worker can’t safely carry out the job utilizing the authorized product, then take into account putting the worker on a medical go away, Household and Medical Go away, or short-term incapacity somewhat than terminating the worker.
Doc the interactive discussions and the explanations for the choice reached.
No. 5: Let NyQuil be your information. (Not a product endorsement!) Typically, deal with authorized hemp/marijuana/hashish merchandise – in states the place the use is authorized – the identical approach you deal with alcohol, authorized prescription drugs, and authorized over-the-counter drugs which are mind-altering. (I lately had a chilly, and DayQuil/NyQuil bought me via it, however, boy, discuss mind-altering . . .!) If workers in safety-sensitive positions use any of those merchandise, you may need to require them to reveal the use after which place them out of labor whereas they’re utilizing, or quickly reassign them to a non-safety-sensitive place.