Q&A: Ask Carl – Marijuana and the Workplace

Question: As result of a ballot question in the 2020 election, New Jersey just legalized recreational marijuana. State utility contractors are up-in-arms about what this means for their workforce, safety on our job sites, and ultimately any firm liability exposure. Due to the safety sensitive nature of our work, we must somehow provide protection for our companies and our employees, but at the same time respect the results of this vote. What is your advice on how to proceed?

Answer: This is an excellent question. In short, the answer to this question is that despite how complicated it may seem, the scenario for moving forward in your own company is quite simple.

Allow me to give some context to the scenario. The Constitution’s Second Amendment states that “we the people” have the right to bear arms. Today, you can pretty much open-carry a firearm in most states of the union. Despite the Constitutional amendment that gives us this right, a privately owned business or company can forbid the carrying of any firearm on their property, and “we the people” must legally abide by the company or business owners demand since we are on their private property.

Similarly, the governing document in cases where a contractor is doing business in a state where marijuana is legal or draws employees from states where marijuana is legal is going to be your company policy, which can be further strengthened by contractual job agreements. Your company policy on the employee’s use of these substances and its consistent application is the key factor in protecting yourself in these situations.

For example, in Washington, D.C., marijuana is legal for private citizens to consume, but due to the safety sensitive nature of construction work, there is a zero-tolerance drug policy in place both by local authorities and the companies. The same logic applies to all U.S. DOT-regulated transportation employees regardless of state or federal law. Also, depending on the type of contract you have in place, this may exceed your criteria for a zero-tolerance policy. Standard government or municipal contracts or P3 jobs (public-private partnerships) will certainly prohibit the use of drugs on project work sites.

Another example is found in Oklahoma. On March 14, 2019, Gov. Kevin Stitt signed into law H.B. 2612, commonly referred to as the “Unity Bill.” The Unity Bill was the product of a bipartisan group of legislators tasked with implementing additional regulations designed to address gaps and ambiguities that remain after the enactment of State Question 788, which in 2018 legalized medical marijuana in the state of Oklahoma.

The new law, called the “Oklahoma Medical Marijuana and Patient Protection Act,” contains a provision that allows employers to designate certain positions as “safety sensitive.” In a nutshell, employees who work in positions classified as “safety sensitive” can be disciplined if they test positive for marijuana or its metabolites, even if they have a valid Oklahoma medical marijuana license. In addition, employers may also refuse to hire applicants for safety-sensitive jobs who test positive for marijuana as part of a pre-employment drug test, even if those applicants can produce a valid medical marijuana patient license.

Prior to the election, the U.S. Congress was looking to take this sensitive topic up for legislative consideration. However, it now appears that the nation will have to wait until late 2021 before there is any movement on reclassifying marijuana to something other than the controlled substance it has been for decades.

The bottom line is that if an employee has a safety-sensitive position, and wants to partake in the legal marijuana program for their respective state, they have two options:

1) Resign from the safety-sensitive position and apply for a new non-safety-sensitive role
2) Have the company reclassify their job and title to something that is not safety-sensitive

To ask Carl a question about safety in the workplace, you can reach him at carl@nuca.com. Due to the volume of questions, replies may be limited to this column. Carl Vasquez, CSP, ASP, TSSP, is Director-Safety, Education & Training, for the National Utility Contractors Association (NUCA).

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