Do Employers Have To Allow Medical Marijuana And Prescription Opioids At Work?

Dec 6, 2017
Originally published on December 5, 2017 6:36 pm

If you run a business in Florida, you have the right to maintain a drug-free workplace. But does that apply to drugs prescribed by a doctor — like medical marijuana and opioid painkillers?

Employment attorney Jonathan Segal recently sat down with WLRN’s Peter Haden to discuss how employers can approach legal drugs in the workplace. Segal is a partner at the law firm Duane Morris LLP.

SEGAL: What we now see in a lot of workplaces is a recognition that that drug-free workplace policy that we have, that talks about illegal drugs, may not be getting at the real source of our problem.

WLRN: Why not?

They’re talking about illegal drugs. And what they're not looking at is, what do I do about opiates? What do I do about my medical marijuana? What do I do about alcohol? What do you do with the employee that may have an opiate problem and they became dependent through no fault of their own? Do you want to give them an opportunity to step forward? How do you create a safe harbor, but at the same time don't allow someone who engages in misconduct to think if they come forward, they're now protected.

It's the language that you craft on [your workplace policy].

Do the medical marijuana laws limit the ability of an employer to enforce a drug-free workplace?

In Florida, the law is clear: You can say no medical marijuana in the workplace and you can't be under the influence.

Even the states that are the most protective of the rights of medical marijuana users recognize completely that an employer has the right to keep the drugs entirely out of the workplace or during working hours, and that the employer has a right to respond to the adverse effects of it — if an employee is under the influence.

There is a really good precedent for it: It's called alcohol. We don't say you can’t drink. But if you drink in the morning and come to work impaired or under the influence, you're going to have a problem. We're not saying you can't do medical marijuana, but if you come to work high, you're going to have a problem.

So people who are using medical marijuana under the supervision of a physician, one of the things they should be asking the physician is, “When should I be taking this to limit the likelihood that it will impact me at work?”

Jonathan, how can employers care carefully?

No. 1, you want to have an employee assistance program. It is the ultimate enlightened self-interest. Provide employees a place to go where they can get the help they need.

No. 2, think about having an accommodation policy where employees, if they have a problem, know whom to go to. Give people an opportunity to ask for help. And then you accommodate them in accordance with the law. By being kind to the employee, you also get yourself a legal position.

When you have communications with employees, you don't have to speculate what the cause is. But you can say, “Your performance is not what it what it should be. I want you to succeed, but you're not. I want to know if there's anything I can do to help.”

This reminds me -- and it is a Florida case. And it shows how caring people can get into trouble:

An individual in recovery said to an individual who was struggling with alcohol - palpably, “I know where you are. You remind me of me. I think you have a problem. Get help. I will go with you to an AA meeting.”

This was someone who, in the 12-step world, was doing the 12th step -- trying to help someone. That person said, “I don't have a problem.” Later, that person lost their job.

A federal lawsuit in Florida -- the person argued, “My boss perceived me as an alcoholic by telling me I had a problem.” That kind of makes me sad. But I'd rather not be sad. I'd rather be thoughtful.

So the thoughtful thing might be to say, “I don't know what the issue is, and I'm not going to inquire. But what I am saying is, my door is open. If you need help, and you ask for it, we'll do whatever we can that's reasonable.”

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