Abstract
Recently, the managing board of Acme-Antiroadrunner Inc. discovered that three of its employees were using marijuana recreationally and were present in the workplace while under the influence. They work for different branches of the company in states with varying freedoms of cannabis use. The following paper contains an overview of drug use policies and practical recommendations concerning the issue.
So far, it appears that when compared, nationwide and state legislation show double standards and inconsistencies. 34 states legalized marijuana for medical use while other ten permit recreational use as well. There are certain acts such as the American Disability Act and the Rehabilitation Act that shed some light on the issue.
From recent court cases, it seems that the law is on medical marijuana users’ side. In case an employer cannot accommodate their disability that requires drug use, he or she may be penalized. However, recreational use in the workplace is punishable by law. Drug testing is a controversial practice that can compromise employers’ sense of dignity and well-being. The three employers at Acme-Antiroadrunner who tested positive should receive a warning and a counseling session. Additionally, the company should issue a policy statement and organize educational training at all levels.
Introduction
Drug use in the workplace is still a grey area: it is not entirely clear whether random drug tests make sense and what managers are supposed to do about employees who were caught under the influence. As reported yesterday, one of the employees working for our Alabama affiliate company, Mark V., was tested positive for cannabis. At the same time, two other employees, Serena L. and Lena D., were also found to be using marijuana in the workplace.
I find this situation challenging since Mark V. resides in a state that prohibits cannabis use while Serena L. and Lena D. reside in Rhode Island and Pennsylvania where it is perfectly legal. Herewith, I am presenting my report on the issue of marijuana use in the workplace and recent court rulings. I will also provide my tips and recommendations regarding reasonable solutions for the current case and similar cases if they are to arise in the future.
Drug Scheduling in the United States
According to the United States Drug Enforcement Administration (2018), drugs, substances, and certain chemical compounds that are routinely used to make drugs can be classified into five distinct categories, or so-called schedules. The logic behind the said classification is explained by the acceptable medical use and dependence potential of each drug or substance (Carliner, Brown, Sarvet, & Hasin, 2017). When classifying drugs, the abuse rate is among the major determinant factors that are taken into account. As the drug schedule number increases (Schedule I, Schedule II, etc.), its perceived abuse potential and adverse psychological and/ or physical effects decrease. According to the United States Drug Enforcement Administration (2018), Schedule I drugs have no acceptable medical use and are addictive.
These are some examples of Schedule I drugs: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote (Drug Enforcement Administration, 2018). As seen from the list, marijuana is among the least acceptable drugs and substances; however, this claim is still debated. Some experts see the classification that was developed in 1970 at the beginning of the war on drugs flawed and outdated (Centers for Disease Control and Prevention, 2018). Scientifically speaking, recent studies on the topic have not led to any conclusive findings as some of them reveal dependence potential while others proclaim marijuana an almost safe recreational drug (Hasin et al., 2015).
Legal Rationale
While marijuana use and its potential for causing dependence are compelling topics, they are not exactly what the managing board of Acme-Antiroadrunner Inc. should be focusing on. First, there is a need to shed light onto current legislation regarding drug use in the workplace. The most relevant statutes that pertain to our case can be found in the Americans With Disabilities Act and the Rehabilitation Act of 1977 (Maisto, Galizio, & Connors, 2014).
They outline essential drug and alcohol policies and grant employers the right to prohibit the illegal substance use in the workplace. Random testing for illegal cannabis use does not violate the Americans with Disabilities Act, especially given that none of our suspects allegedly consumed cannabis for medical purposes. Moreover, according to the said acts, employers have the right to deny or discharge employment to the consumers of illegal drugs. This means that Acme-Antiroadrunner can suspend Mark V., Serena L., and Lena D., and this would be perfectly legal to do so.
One more argument speaks in support of this somewhat harsh position. The Drug-Free Workplace Act of 1988 prescribes all companies to take both punitive and preventive measures to tackle the issue as a prerequisite for receiving a contract or a grant from Federal Agency (Maisto et al., 2014). Acme-Antiroadrunner Inc. is a successful company that is striving for even more prosperity, and a denial of a federal grant or contract would go against our plans. To be eligible, the company needs to do the following:
- publish a statement notifying employers about the consequences of illegal drug use in the workplace;
- establish a drug-free awareness program that would inform employers about the relevant policies and drug counseling and assistance programs;
- make it a requirement that each employee engages in the contract (Maisto et al., 2014).
Apart from the legal perspective on the issue, Acme-Antiroadrunner Inc. should also consider it from the rational standpoint. When it comes to drug use in the workplace, one of the main concerns is whether a worker is capable of performing when under the influence. The point that I seek to make is that the question regarding marijuana use and work productivity impairment remains open. Recreational marijuana use is often compared to alcohol; however; as employers, we need to understand that the situation is more nuanced than that.
As of now, despite certain scientific and medical advancements, it is nigh on impossible to evaluate the effect that marijuana has had on a specific individual’s cognitive and physical abilities after a single consumption (Robinson & Scherlen, 2014). Alcohol, on the contrary, may be easier to deal with: a simple and non-invasive breath or saliva test can help us figure how impaired a worker is. It is a well-known fact that a blood alcohol concentration of.08% means that a person should not be allowed to participate in certain activities (working, driving, and others). However, the concentration of THC (nanograms per milliliter) in the blood does not tell much about the level of work impairment or long-term habits (Hall & Weier, 2015).
As reported by other managers, the work performance of Mark V., Serena L., and Lena D. was not impaired by their marijuana use. Yet, we cannot make any conclusions based solely on this case. We do not know how much cannabis they took, and individual factors such as personal resistance and unique body response play a role. Thus, we cannot dismiss the case now simply because nothing has happened yet.
All points taken into consideration, I deem it reasonable to review a few recent court rulings, which would further help the company develop its own blueprint regarding handling cases such as those of Mark V., Serena L., and Lena D. Other people’s experience and expertise matter, especially given the Anglo-Saxon law system that prioritizes precedents. The next step would be a plan on how to deal with employers who abuse substances in the workplace at the organizational level. I put a special emphasis on the second step since developing more clear policies is a proactive strategy to adopt. This will allow Acme-Antiroadrunner Inc. prevent such cases from happening as opposed to merely handling the consequences.
Recent Court Rulings
The legal history of marijuana use has seen dozens of cases dealing with the issue of drug testing and recreational drug accommodation in the workplace. Reviewing recent court rulings is especially important because each of the mentioned cases has the potential to impact drug-free workplace policies state and nationwide. The following court decisions highlight the public stance on medical and non-medical use of marijuana and serve both to reinforce and limit drug testing.
Marijuana use in the workplace – Barbuto v. Advantage Sales and Marketing, LLC
Lower state courts had decided that the employee in question that was tested positive for drugs did not have a valid cause of action against her employer. Barbuto claimed that she used marijuana for medical purposes to relieve chronic stress, which would make punishing her a form of disability discrimination. Barbuto took the case to the Massachusetts Supreme Court that, in turn, ruled that the woman was in the legal right to file a lawsuit against her employer. The court, however, did not rule on whether she was actually discriminated but only confirmed that she was entitled to fight for her rights. The case gained a great deal of public traction since many employers and drug testing providers were caught by surprise.
In Barbuto v. Advantage Sales & Marketing, LLC (2017), the court’s opinion was based on the following provision from the Massachusetts medical marijuana law: a person meeting the requirements for medical use should not be penalized in any manner.
Thus, it is illegal to deny an individual a legal right or action only because of his or her status as a medical cannabis user. Massachusetts Supreme Court referred to the disability discrimination law that required employers to provide a reasonable accomodation with a a disabled inividual. Advantage Sales and Marketing, LLC refused to hire the plaintiff solely on the grounds of the drug test results. By that, they denied her the legal right to workplace disability accommodation. While this case does not exactly pertain to the issue that we are currently having with three of our employees, I would still like to inform you on this court decision. In the future, the company might have to deal with medical cannabis use, and it makes sense to be prepared.
The case of Coughlin
While the situation with medical marijuana use is more or less clear, recreational use raises many more questions. Last year, the same state as in the first case, Massathussents, ruled against an employee who was tested positive for drugs. Bernadette Coughlin was fired from her job for using marijuana in her free time (Ramos, 2018). She had an accident in the hospital kitchen, which led to her falling and eventual drug test.
When the results came in, the hospital’s managing board decided unanimously on her suspension. The employer never clarified whether these accidents were frequent enough to raise suspicions. According to Couglin, it was the first time that she had a fall, and the accident was not caused by her being under the influence. She broke two bones, lost a job and insurance, and was left with a soiled reputation. The woman spent the next few months pleading with lawmakers and trying to bring about the change in the state’s marijuana laws.
Some of the authorities step forward and expressed their support. Namely, Senator Barbara L’Italien who lobbied opioid legislation that would protect the users highlighted the faulty nature of the current policies (Ramos, 2018). While marijuana is legal in Massachusetts, it is up to employers to decide whether they are ready to tolerate substance use in the workplace. For Acme-Antiroadrunner Inc., this might mean that we are in our legal right to suspend all three workers for drug use. However, their loyalty to the company and otherwise impeccable behavior raise the question whether such a decision would be unreasonably cruel. So far, it seems like giving a warning and counseling employees tested positive for drugs could have been a more appropriate option.
Federally mandated drug testing and privacy concerns – Pingatore v. Union Pacific Railroad Company
Pingatore v. Union Pacific Railroad Company (2017) case started with a railroad worker that claimed that the manner in which drug and alcohol testing was conducted violated the Fourth Amendment to the US constitution (the right to privacy).
Pingatore’s behavior at work, namely, several accidents and leaves from work, raised suspicions, which resulted in him being tested 18 times in under 11-month period. Moreover, while he was taking samples in the bathroom, other employees were allowed to enter, which the plaintiff found humiliating. The situation was especially odd given that those administering the test notified everyone about the specific locations where the drug testing was being performed. Normally, such procedures would imply anonymity and confidentiality, but Pingatore was denied these privileges. His coworkers learned about the situation, which compromised his reputation at the company. The other employees went as far as calling him derogatory names even though the plaintiff tested negative each time.
The Arkansas Appeals Court reasoned that employees working in the railway industry that is typically highly regulated should not have too high expectations concerning privacy. The authorities had to consider the moral aspect of the question and decide whether the manner in which the test was conducted was indeed offensive. The court claimed that since Pingatore did not show any protest or resistance, the employer had no way of knowing that the procedures caused suffering. Legally, a person’s right to privacy in highly regulated fields does not guarantee full anonymity. While this case might seem as a victory for employers and drug test providers, we should still be cautious. Acme-Antiroadrunner needs to ensure that employers’ dignity is not compromised to avoid lawsuits.
Drug Awareness in the Workplace
Policy Statement
The first step that we need to take in order to tackle the issue and prevent such unfortunate cases from happening in the future is to create a drug-free workplace policy. As of now, Acme-Antiroadrunner does not have a comprehensive document that would serve as a point of reference for both managers and employees. Since the cases of working under the influence continue to happen, the company seems to be confronted with a serious issue. The information that I have provided in this report so far can be used in a policy statement. There are Internet tools such as an online policy builder provided by the Department of Labor that could help us create the document (Pidd, Kostadinov, & Roche, 2016). It seems reasonable to outline the following points:
- the purpose of the document. There needs to be a clear rationale as to why we are introducing these changes and why they make both economic (work performance) and legal (drug use restrictions and prohibitions) sense;
- the legal background for our policies. This should include nationwide and state policies as well as some recent examples for illustration. It is essential to rewrite and summarize legal documents in a way that would make the text comprehensible for a person who has nothing to do with the legal field;
- consequences and repercussions of drug use in the workplace. This may include a fact sheet on the effects of marijuana on concentration, memory, and other cognitive faculties. The company should also be clear about what ensues if someone tests positive for drugs. While the overall policy statement may be based on the ideas of reformative justice, employers should understand that blatant and repetitive code violations will end up in suspension (Pidd & Roche, 2014);
- practical assistance ideas. Acme-Antiroadrunner Inc. praises itself on building a tight-knit community of coworkers. We understand that sometimes, some of them need help in fighting their addiction. It is not exactly clear whether it is the case when it comes to Mark V., Serena L., and Lena D. However, if upon further investigation, it turns out that they are struggling, the company should do its best to help. There is a need for comprehensive training sessions, counseling coverage through our insurance, and referrals to centers and facilities. Later on, Acme-Antiroadrunner Inc. may come up with intervention policies to make the process smoother and enhance the outcomes for everyone involved.
These changes should be communicated to managers and employers via e-mail and physical handouts. The policy statement should be available online at all times.
Supervisor Training and Assistance Programs
Once the company has created a policy statement, the next step would be to communicate and make the changes if the latter is necessary. I propose a three step plan:
- supervisor training. Managers are the backbone of Acme-Antiroadrunner Inc., and they should be the first to learn about the new policies. At this stage, participatory planning is a must: they should not feel as if they have to comply with the top-down decisions made for them. It is possible that supervisors will revise the policies and make suggestions as to how they could be adjusted to be more aligned with the company’s vision. The end goal of this stage is to make sure that supervisors are knowledgeable about the subject, understand the purpose of the drug-free policies, and can effectively communicate what they learned;
- employee education. The next step includes passing down the new information to employees. While self-learning might be effective in some cases, I suggest that the company holds actual training sessions to ensure that there is no ambiguity and misunderstanding. These lectures should not take the form of frontal lectures; instead, it could be more engaging to hold discussions and study cases that pertain to the issue Campello, Sloboda, Heikkil, & Brotherhood, 2014);
- employee assistance. During the sessions, it is critical to inform employees that they can count on the company if they need help. Early referral and treatment constitute a more proactive strategy than handling consequences when a situation derailed beyond repair. Acme-Antiroadrunner should collaborate with medical facilities and be able to give struggling employees contact information.
Conclusion
Marijuana remains the most frequently consumed drug in the United States, and the current policies around its use are confusing at best and controversial at worst. By 2019, 34 states have legalized medical use of marijuana, and ten now legally allow recreational use. Inconsistencies and differences in state-to-state legislation has given rise to the emergence of double standards, which makes it particularly difficult to create reasonable workplace policies. The decision that Acme-Antiroadrunner Inc. will have to make regarding its three employees – Mark V., Serena L., and Lena D. – is not going to be an easy one.
From the legal history of the issue, it appears that only medical use of marijuana in certain states is protected by law. When it comes to recreational use, employers retain the right to penalize employees who tested positive for drugs. However, it is essential to conduct the procedure so that their dignity remains intact. Giving the three employees a warning and counseling them on the effects of marijuana use in the workplace is a short-term solution. The company needs to create an effective drug-free policy and communicate the changes to employees.
References
Barbuto v. Advantage Sales & Marketing, LLC, SJC-12226 (2017).
Campello, G., Sloboda, Z., Heikkil, H., & Brotherhood, A. (2014). International standards on drug use prevention: The future of drug use prevention world-wide. International Journal of Prevention and Treatment of Substance Use Disorders, 1(2).
Carliner, H., Brown, Q. L., Sarvet, A. L., & Hasin, D. S. (2017). Cannabis use, attitudes, and legal status in the US: A review. Preventive medicine, 104, 13-23.
Centers for Disease Control and Prevention. (2018). Marijuana and public health. Data and statistics. Web.
Drug Enforcement Administration. (2018). Drug scheduling. Web.
Hall, W., & Weier, M. (2015). Assessing the public health impacts of legalizing recreational cannabis use in the USA. Clinical pharmacology & therapeutics, 97(6), 607-615.
Hasin, D. S., Saha, T. D., Kerridge, B. T., Goldstein, R. B., Chou, S. P., Zhang, H.,… & Huang, B. (2015). Prevalence of marijuana use disorders in the United States between 2001-2002 and 2012-2013. JAMA psychiatry, 72(12), 1235-1242.
Pingatore v. Union Pacific Railroad Company, No. CV-16-810 (2017).
Maisto, S. A., Galizio, M., & Connors, G. J. (2014). Drug use and abuse. Boston, MA: Cengage Learning.
Pidd, K., Kostadinov, V., & Roche, A. (2016). Do workplace policies work? An examination of the relationship between alcohol and other drug policies and workers’ substance use. International Journal of Drug Policy, 28, 48-54.
Pidd, K., & Roche, A. M. (2014). How effective is drug testing as a workplace safety strategy? A systematic review of the evidence. Accident Analysis & Prevention, 71, 154-165.
Ramos, N. (2018). Marijuana use is legal. So why can employers fire people for using off-hours? Boston Globe. Web.
Robinson, M. B., & Scherlen, R. G. (2014). Lies, damned lies, and drug war statistics: A critical analysis of claims made by the office of National Drug Control Policy. Albany, NY: SUNY Press.