February 1, 2013
Drug testing and workplace investigations will be impacted by state ballot initiatives and NRLB decisions.
By M. Robin Repass
During the 2012 general election, voters in Colorado and Washington State passed ballot Settingsinitiatives to legalize marijuana possession. A total of 18 states currently allow the “medical” use of marijuana in some form (according to information posted at http://norml.org/states as of Dec. 13, 2012). Meanwhile, the National Labor Relations Board (NLRB) issued a flurry of decisions in 2012 on various issues of interest to personnel in safety and human resources (HR) positions. This article addresses issues of particular interest to a safety sensitive workplace regarding marijuana laws and the status of workplace investigations.
Marijuana ballot initiatives
Many employers are asking whether the legalization of marijuana use in their state prohibits them from firing employees who test positive for marijuana. The short answer is that marijuana remains an illegal substance at the federal level. Provided that your policy also prohibits substances which are illegal under federal law, employers may continue to restrict the use of marijuana in the workplace through workplace policies and drug testing programs.
Colorado’s Amendment 64 regarding marijuana possession also reads that employers are not required to accommodate marijuana in the workplace. Although the state of Washington’s marijuana ballot initiative is silent regarding workplace issues, a decision construing Washington’s medical marijuana laws lends support to employers who restrict marijuana use through drug testing programs.
U.S. Attorney John Walsh recently issued a statement that the U.S. Department of Justice will continue to enforce the Controlled Substances Act, which includes marijuana on the Schedule I controlled substance list. Substances on the Schedule I list are illegal under federal law.
The U.S. Department of Transportation (US DOT) also clarified its position. For covered employees (pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel), the US DOT will continue to fully enforce its drug and alcohol testing regulation, which does not authorize the use of Schedule I drugs for any reason.
Review and update drug policies
Employers in states where marijuana has been legalized or decriminalized are advised to review and update employee policies to clarify that the use of marijuana in the workplace will not be tolerated. This is especially true in a safety-sensitive workplace. An employee who is impaired through the use of marijuana creates a safety risk to fellow employees.
Best practice pointers include, but are not limited to, the following:
• If your company has a zero-tolerance drug testing policy, state this clearly in the policy. Enforce the zero-tolerance policy consistently.
• 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.
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.
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.
Impact of NLRB ruling
The NLRB rejected the employer’s position that its generalized concern about protecting the integrity of its investigation outweighed the employee’s NLRA concerted activity rights. The NLRB’s concern was with the blanket approach taken by Banner Health. Rather than simply prohibiting all discussions regarding workplace investigations, the decision instructs employers that, in order to minimize impact on employees’ NLRA rights, the employer must first determine whether:
• There are witnesses who need protection;
• Evidence is in danger of being destroyed;
• Testimony is in danger of being fabricated; or
• There is a need to prevent a cover-up.
An employer may prohibit employee discussions of ongoing investigations in situations in which it has a legitimate business justification that outweighs an employee’s right to communicate with co-workers. Routine or generalized prohibitions will not outweigh employee rights. Rather, the employer must be able to show that, as to a specific investigation, the employer made a determination as to whether any witnesses needed protection, evidence was in danger of being destroyed, or testimony was in danger of being fabricated.
In view of several other recent NLRB opinions focusing on § 7 rights in a variety of contexts, such as policies restricting employee expression of views in social media, companies are advised to consult with legal counsel to determine whether updates to personnel policies and handbooks are needed.
Robin Repass practices in Jackson Kelly PLLC’s Denver office, where she works with the firm’s Labor and Employment Practice Group. She can be reached at 303-390-0024 or via email at firstname.lastname@example.org.