Cannabis and the Contractor: Effective Drug Testing Policy and ComplianceAlthough marijuana is an illegal drug under federal law, a majority of states have now legalized its use in one form or another. Additionally, Canada recently legalized the use of marijuana, and proposals for loosening America’s federal prohibition abound in Congress. This rapidly evolving legal landscape presents new challenges for contractors (and other employers), particularly those working in several states. Contractors must balance complying with often divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights. Although difficult at times, there are steps contractors can take to help navigate this legal minefield successfully.

Maintain a Safe Workplace and Jobsite

The Occupational Safety and Health Act’s general duty clause requires contractors to maintain a safe jobsite and work environment “free from recognized hazards that are . . . likely to cause death or serious physical harm.” Construction sites already contain a number of hazards that can result in personal injury, and an employee’s impairment due to drugs or alcohol can seriously increase the danger to persons and property. Accordingly, most contractors have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states has made maintaining a zero-tolerance policy more difficult.

In some states, contractors must accommodate an employee’s use of medical marijuana. For example, in Noffsinger v. SSC Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user. Similarly, Oklahoma law prohibits contractors from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations. Although these statutes do not prohibit contractors from disciplining employees who consume marijuana, or are under its influence, while on the jobsite, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken.

Other states that have legalized medical marijuana do not require a contractor to accommodate employees’ use. In California, for example, a contractor can dismiss an employee who tests positive for marijuana and its components. Likewise, under Ohio law, contractors are not prohibited from refusing to hire, discharging, or disciplining a person because of the use or possession of medical marijuana, nor are contractors prohibited from establishing and enforcing a zero-tolerance drug policy.

Between these two ends of the accommodation spectrum, a number of states’ laws provide for varying levels of accommodation for employees’ medical marijuana use. In Illinois, for example, contractors are prohibited from discriminating against employees and job applicants who qualify as a medical marijuana patient unless the accommodation would result in the violation of a federal law or the loss of a federal benefit. Nonetheless, Illinois contractors may still impose reasonable limitations on the consumption of medical marijuana and enforce zero-tolerance and drug-free work place policies as long the policies are applied in a non-discriminatory manner. Other states, such as Delaware, Nevada, New York, and West Virginia, have similarly varied degrees of required accommodation.

To help navigate these nuanced laws, contractors, especially those with a multi-state footprint, should develop a well-defined drug policy and administer a drug testing program in a non-discriminatory manner.

Develop a Well-Defined Drug Policy

Developing a well-defined company policy on marijuana use will minimize the risk of harm to persons and property, and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will open the door to liability for adverse employment decisions. At a minimum, contractors should ensure that a company drug policy:

  • Defines the terms “marijuana,” “cannabis,” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.
  • Indicates that the use of marijuana, whether recreationally or on the job, is strictly prohibited.
  • Articulates drug testing policies and procedures (including penalties for failing a drug test).
  • Educates employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions, and the potential impacts on workplace safety and performance.
  • Is included in recruiting and new-hire onboarding materials to ensure notice to the individual.

 Consistently Administer a Drug Testing Program

Once a contractor adopts a drug policy, it is critical that drug tests are conducted uniformly for all employees. Failure to do so can subject a contractor to liability for discrimination claims that arise from adverse employment actions.

If an employee tests positive for marijuana, the recourse available to a contractor can vary greatly under federal and state laws. For example, the Americans with Disabilities Act (ADA) currently does not shield an employee from adverse employment actions for using marijuana to treat a disability, even if the employee refrains from using medical marijuana while on the job. The ADA exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the Controlled Substances Act, which currently lists “marihuana” as a banned substance. As a result, at least under the ADA, contractors can terminate an employee who tests positive for marijuana, even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time. Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, a contractor is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or for temporary leave during treatment.

By contrast, as discussed above, some states require an employer to accommodate an employee’s use of medical marijuana and prohibit a contractor from terminating an employee for a failed drug test for marijuana use. Contractors should be mindful of the potential for conflict between their own drug testing policies and requirements mandated by federal or state laws. If there are questions as to what actions a contractor can take against an employee for failing a drug test, contractors should seek the advice of legal counsel.

The Measure of Success

An effective drug policy decreases hazards and promotes an accident-free work environment. While state and federal laws meant to promote this goal may seem straight forward when read in isolation, problems arise when these laws overlap or conflict with one another. The growing number of states legalizing marijuana use, and the nuanced differences between laws, will only amplify this problem. Although all contractors need to implement well-defined policies and procedures, it is particularly important that contractors operating in any of the 30 plus states in which marijuana is now legal in some form take time to review current policies and evaluate the need for changes to ensure employee safety and reduce company risk.  If you have questions about this rapidly changing legal issue, you should contact an attorney with experience in this emerging area of the law.

The Importance of Maintaining a Safe Construction SiteIn October, a Florida jury found a general contractor liable for $45 million for the death of a motorist killed by one of the contractor’s trucks pulling out of a road construction job site. The case highlights the importance of maintaining a safe and accessible construction site both for the workers on-site and civilians located or traveling nearby.

In 2014, the Florida Department of Transportation (FDOT) awarded a contract for the construction of a segment of an I-75 renovation project to the contractor. The contract was for over $85 million. The work site for the project was an active stretch of the I-75 interstate in Broward County, Florida. The contractor performed work in closed lanes and along the median of the highway during the project.

On May 28, 2015, while exiting the job site, a truck driver working on the project attempted a U-turn with a heavily loaded truck at a dangerously low speed. The truck driver’s slow maneuver caused oncoming motorists to crash into the tractor-trailer. One of the motorists, the husband of the plaintiff in the lawsuit, died upon impact with the truck.

The plaintiff’s complaint alleged that the contractor failed to provide a safe method of exiting the work site which resulted in the death of her husband. The plaintiff contended that the contractor should have had a detailed plan for the maintenance or control of traffic and that such requirements were a part of the contractor’s agreement with FDOT.

The trial lasted four weeks. At trial, the plaintiff also argued that the contractor had received prior verbal and written warnings of deficiencies in its safety plan for the project. The jury agreed with the plaintiff and found the contractor had violated the requirements of its contract with FDOT and had acted negligently in causing the death of the plaintiff’s husband.

Of note, the jury found the contractor liable even though the truck driver who caused the motorist’s death was actually an employee of a subcontractor. The $45 million verdict included $20 million in compensatory damages and $25 million in punitive damages. The amount of the punitive damages and the imposition of vicarious liability on the contractor should serve as a stark reminder to all construction industry participants regarding the importance of providing a safe work environment. Ignoring safety standards can result in serious injury or the tragic loss of life, and the resulting civil damages liability can be crippling to any contractor, regardless of size.

OSHA and Workplace Violence: What Contractors Need to KnowAlthough most contractors go to great lengths to promote jobsite safety, the fatal injury rate in the construction industry – which employs almost 6.5 million people – still exceeds that of any other U.S. industry. The Occupational Safety and Health Act (OSHA) has an entire section of regulations just for contractors. The OSHA regulations help contractors mitigate jobsite hazards such as falling, electrocution, and chemical exposure.  Outside of these known jobsite risks looms the less familiar, but possibly just as dangerous, threat of workplace violence. Workplace violence may include any act of violence, by any individual, against an employee. Employers in all industries may face OSHA citations for failing adequately to prevent it. Yet OSHA does not have a single standard that specifically addresses workplace violence. So what is a contractor to do?

Although OSHA does not regulate workplace violence per se, its “General Duty Clause” requires employers to take “feasible means” to prevent against known threats of violence. The General Duty Clause requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The elements of a General Duty Clause violation are: (1) a hazard in the workplace; (2) the employer or the employer’s industry recognizes the hazard; (3) the hazard is likely to cause death or serious physical harm; and (4) there is a feasible means of eliminating or materially reducing the hazard.

In the context of workplace violence which might give rise to an OSHA citation, a key element is that the hazard must be known to the employer or the employer’s industry. Thus, OSHA citations for breaches of the General Duty Clause typically arise in healthcare — for example, in a psychiatric hospital where employees regularly face violent patients. In the construction realm, these citations are much less common. Nonetheless, a contractor could violate the General Duty Clause by ignoring or failing to recognize obvious threats or signs that an individual was going to commit an act of violence against other employees.

While the foregoing focuses on OSHA citations, a contractor could also face civil liability in a lawsuit by an injured employee against an employer. Furthermore, while the availability of workers’ compensation may bar many such lawsuits, contractors should not blindly rely on workers’ compensation insurance as a shield.  If the contractor knew about an obvious threat and ignored it, an employee may be able to circumvent the usual bar and recover directly against the contractor.

Despite the lack of specific regulation beyond the General Duty Clause, OSHA has voluntary guidelines to prevent and mitigate workplace violence. The guidelines provide a helpful outline of a preventative program:

  • Identify and authorize individuals within the company to implement anti-violence programs.
  • Assess what positions or tasks are most likely to lead to violent incidents.
  • Create measures to control the risk.
  • Train employees to identify potential violence and handle violent incidents.
  • Evaluate the effectiveness of the company’s program.
  • Make sure that the hiring process thoroughly vets potential employee backgrounds.

Contractors should endeavor to prevent violence by employees and third parties just as any other employer.  Most contractors have numerous projects occurring at the same time, and workers may face different threat levels based on the location of those projects. Thus, contractors should tailor preventive measures to reflect the location and nature of the projects. For example, if a project is in a neighborhood with a high crime rate, a contractor should devote more resources to safety training and dedicate on-site management to preventing and mitigating harm.

A critical element, and good starting point, is general awareness of potential harm in the first place. This starts with the hiring process and carries through to evaluating the general safety of workers on particular projects and raising awareness of threats on a daily basis.