• Identify prohibited substances as drugs which are illegal at the state or federal level, as marijuana remains on the Schedule I list and is illegal under federal law. This is especially true in Colorado, where employees may sue under a statute addressing terminations for engaging in lawful off-duty activities. So long as marijuana remains illegal at the federal level, it is unlikely that a court would find that an employee with a positive marijuana drug test engaged in “lawful” off-duty activity.

• Colorado’s Amendment 64 allows policies which “restrict” the use of marijuana by employees. Examine your policies to avoid an argument that your policy exceeds this restriction, as the term “restrict” is not defined and is subject to future interpretation.

• The state of Washington’s Initiative 502 is silent regarding an employer’s right to prohibit or restrict marijuana use. However, in 2011, the Supreme Court of Washington issued an opinion in Roe v. Teletech Customer Care Management, holding that Washington’s medical marijuana laws do not provide a private right of action to employees discharged for a positive marijuana drug test and that employers are not prohibited from disciplining employees who use marijuana.

• State whether your company follows the Drug-Free Work Place Act of 1988, which likely supports your company’s prohibition of all use of marijuana by employees.

The legislative landscape concerning recent marijuana legalization is expected to rapidly change. It is, therefore, important to monitor the status of marijuana legislation if you maintain a worksite in a state affected by marijuana legalization or decriminalization. Employers should also request updated policies from the lab handling the employer’s drug testing program.

Workplace investigations

The NLRB issued a number of decisions in 2012 regarding work rules with the potential of chilling employees in their exercise of rights under the National Labor Relations Act (NLRA). In one such decision, issued on July 30, 2012, in the matter of Banner Health System and James Navarro, the NLRB held that prohibiting employees from discussing ongoing investigations violates employees’ rights under the NLRA to engage in concerted activity [358 N.L.R.B. 1, 193 L.R.R.M. (BNA) 1161, 2012 WL 3095606 (2012)]. The NLRA applies to both union and non-union employees.

Facts

The facts of the Banner Health decision have important considerations for not only HR professionals, but also for safety professionals and supervisors, as the issues surrounding the employee at issue began in the context of a work refusal over a safety and health concern. After a sterile-equipment technician in a hospital learned that he would not be able to sterilize equipment due to a broken steam pipe, his supervisor told him to use hot water from the coffee machine.

The employee did not believe this method was safe. He not only refused to sterilize any equipment, but he also shared his concern with a co-worker and another supervisor. The employee also complained to HR, who instructed him not to discuss the details of the investigation with co-workers while it was ongoing. The employee then filed an unfair labor practices (ULP) charge with the NLRB, claiming that his employer interfered with his rights under § 7 of the NLRA, which gives employees the right to engage in “concerted activities,” for the purpose of collective bargaining, or other mutual aid or protection.