IRAC: at work, the employee will have

   IRAC:Should company policy override state law?MicheleDahlen, CPAHRCU606: Ethical and Legal LeadershipProfessorSam BreslerJanuary26, 2018 Issue:             Should company policy overridestate law?Ruleof Law  As a general rule, companypolicies cannot override the rule of law. With recent changes in marijuana decriminalization and legalization, andmarijuana use is spreading across the country. While these changing marijuanalaws may appear to affect alcohol and drug-related policies, even with thesenew laws in place, marijuana users are not a protected class. Employersgenerally have the right to terminate employees for using marijuana evenoutside of business hours.

  In the UnitedStates most organizations follow an “at-will” employment policy where companiescan fire workers for almost any reason. This means that it would be acceptable for an employer to fire anemployee for marijuana use, regardless of state or federal law. (Guerin, L.,2014)Thewebsite of the National Drug-Free Workplace Alliance (http://www.nwda.org)provides information about the Drug-Free Workplace Act of 1988.  The Act requires employers and contractorswho work with federal agencies to agree that they will provide drug-freeworkplaces “as a precondition of receiving a contract or grant from a Federalagency.

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”  In the text Alexander andHartman write the Drug-Free Workplace Act of 1988 “authorized the drug testing(also called biochemical surveillance , in more legalistic terms) of federalemployees under certain circumstances.” (Alexander and Hartman, 2014, p. 170) Section12114 of the Americans with Disabilities Act of 1990 also has an impact onemployer drug and alcohol policies.  TheAct allows employers to prohibit the illegal use of drugs and the use ofalcohol at the workplace by all employees. The Act also gives employers the right to release or deny employment topersons who use illegal drugs. (www.

ada.gov)Analysis         It might seem irrational for anemployer to ban employees from using marijuana or other drugs even on their ownfree time, but for certain classes of employees, such a policy makessense.  If an employee uses marijuana butgets into a car accident at work, the employee will have no way of proving thatthey weren’t under the influence when accident happened.  By having a strict policy prohibiting drug use,even after hours for employees, the company could attempt to use the policy asa defense against any liability.Drugand alcohol use and misuse, both legal and Illegal, have many serious adversehealth and safety consequences. According to the Substance Abuse and MentalHealth Administration (SAMHSA). “of all drug users, 68.9% are employed andactive in the workplace.

” (Patterson, E, 2018) Using drugs impairs decision-making abilities.  There are many ways employee substanceabusers can negatively impact employers. Employees who come to work under theinfluence of drugs or alcohol run the risk of causing serious accidents.  Substance abusers also hurt employer’s bottomline in terms of limited and poor performance and decreased productivity.  One way an employer can determine ifemployees or job applicants are using drugs is by requiring drug testing.  Drug testing methods have advanced in recentyears and can now provide reliable evidence about the use of alcohol and drugs.  As an employee, you generally have the optionto refuse to take a drug test.

But in some states, you can be fired forrefusing to take a drug test and your eligibility for unemployment benefitswill be limited.Conversely,there are employees who may need marijuana for medicinal purposes.  In the case of Barbuto v. Advantage Sales andMarketing, LLC, No. SJC-12226, Mass., the Massachusetts Supreme Judicial Courtruled that a registered medical marijuana user who was fired by her employerfor failing a drug test can proceed in state court with her disabilitydiscrimination claim (Nagele-Piazza, L, 2017). The court ruled that an employee is justified to use marijuana formedicinal purposes similar to an employee using other prescribed legalmedication.  In its ruling, theMassachusetts Supreme Judicial Court focused their interpretation on languagein the medical marijuana act stating that lawful users can’t be “deniedany right or privilege” for such use.

 Under federal law, marijuana is still classified as a Schedule I drug (U.S.Drug Enforcement Aadministration, 2017) and in past litigation, most stateshave sided with the employer citing that as long as marijuana is illegal underfederal law, the state laws do not apply. However this lawsuit opens the door for disability discrimination casesacross the nation.

Conclusion   While workplace drug testing may not be for allemployers, it is one way an organization can help create a workplace free ofhealth and safety issues due to alcohol and drug use. Before drafting a policy,employers may want to consider why they are testing for drugs.  There are some jobs that require a higherlevel of safety for example, a truck driver or medical professional versussomeone who performs data entry in their home office.  When creating the policy, an organizationshould also consider applicable laws, statutes and regulations.

  As directed in the Drug Free Workplace Act of1988, there are some federal contracts and grants which require employers to implementdrug-free workplace policies and even compel drug-testing of employees.  Employers need to be prudent and use care andjudgement in considering the various legal issues prior to implementation ofany policy related to drug use/testing. Once an organization establishes a clear written policy, they need to ensurethat all employees know about it, and follow through with uniform enforcement thepolicy.

    References”AMERICANS WITH DISABILITIES ACT OF 1990, ASAMENDED.” Americans with Disabilities, www.ada.gov/pubs/adastatue08.pdfAlexander, D.

B., & Hartman, L. (2014).Employment law for business (8th ed.

) McGrawHill “Drug Free Workplace Act of 1988.” National Drug Free Workplace Alliance, www.ndwa.

org/Editor/assets/federallaw.pdfGuerin, L. “Employment at Will: What Does itMean?” NOLO, 2014,www.nolo.com/legal-encyclopedia/employment-at-will-definition-30022.htmlNagele-Piazza,L. “Do Employers Need to Accommodate Medical Marijuana Users?” SHRM, Society for Human Resource Management,26 July 2017, www.

shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/do-employers-need-to-accommodate-medical-marijuana-users.aspxPatterson,E. “Workplace Drug Abuse” U.S.Drug Enforcement Administration (2017), www.drugabuse.com/library/workplace-drug-abuse/  

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