Rock Products

JUL 2019

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46 • ROCKproducts • July 2019 LAW When medical marijuana first started to become legal, mine operators responded in a similar way. Most mines continue to have a zero tolerance policy for both applicants and cur- rent employees for several reasons: (1) being on a mine site is inherently safety sensitive, (2) mines are regulated by MSHA (a federal agency) that does not recognize marijuana as a legal drug and (3) because they've always done it that way. Medical marijuana is now legal in 33 states and in the District of Columbia. Although marijuana remains illegal under federal law, state laws and recent court decisions are becoming chal- lenging for employers. In fact, many state medical marijuana laws contain anti-discrimination provisions that provide job protections for medical marijuana users. Companies may need to re-examine their policies, as there are now five pro-worker court decisions in five separate states that provide legal protections to employees that test positive for marijuana and have a medical marijuana card or prescription. The Cases • In Massachusetts, the Massachusetts Supreme Judicial Court found that a legal medical marijuana user terminated by a sales and marketing company can pursue a disability dis- crimination claim after she was fired for testing positive for the drug. In that case, the employee was hired for an entry-level position and told her employer she was using marijuana to treat symptoms for Crohn's Disease. When her pre-employment drug test came back positive, she was terminated. The court found that employers must engage in the interactive process with medical marijuana users to determine if there is a reasonable accommodation. See Barbuto v. Advantage Sales & Marketing, LLC, 78 N.E.3d 37 (Mass. 2017). • In Delaware, an employee filed an action against Kraft Heinz Foods after he tested positive for marijuana in a post-acci- dent drug test. The employee was a yard equipment operator and was operating a shuttle wagon on the railroad tracks when it derailed. The employee had a medical marijuana card for numerous health issues. Among other claims for discrimination, the employee claimed he was discriminated against under the state medical mari- juana law's anti-discrimination provision. The Superior Court of Delaware held that a private cause of action exists under the law and confirmed that the federal Controlled Substances Act (making marijuana illegal under federal law) does not preempt the state law. See Chance v. Kraft Heinz Foods Co., No. CV K18C- 01-056 NEP, 2018 WL 6655670 (Del. Super. Ct. Dec. 17, 2018). Donna V. Pryor is a partner at Husch Blackwell LLP. She represents those defending whistleblower complaints and contesting OSHA and MSHA safety citations. Additionally, Pyror offers training and regulatory insights to the firm's multinational mining, man- ufacturing and heavy-industry clients. She can be reached at donna.pryor@ With a Little Help From My Friends Managing the Mineeld of Marijuana in the Workplace. By Donna Pryor • In Noffsinger v. SSC Niantic Operating Co., LLC, the U.S. Dis- trict Court in Connecticut found for a plaintiff who alleged she was discriminated against under the Connecticut Palli- ative Use of Marijuana Act (PUMA). 338 F. Supp. 3d 78 (D. Conn. 2018). In that case, the plaintiff was hired as an activ- ities manager at a nursing and rehabilitation facility. The job offer was contingent on passing a drug test, though the plaintiff told the company she was qualified under PUMA to use medical marijuana for PTSD. After her drug test came back positive, her job offer was rescinded. While noting that the state statute provides that nothing in the law restricts an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence during work hours, the court held that the state's medical marijuana law prohibited a company from rejecting a job applicant who failed a pre-employment drug test. • Workplace safety was discussed in a case decided by the Rhode Island Superior Court. In that case, a fabric company refused to hire a paid intern after she tested positive for mar- ijuana, after she disclosed she had a medical marijuana card. The defendants emphasized that their facility has dangerous equipment and expressed a concern for workplace safety. Finding the company violated the state's medical marijuana law when it refused to hire the intern, the court noted the state law does not permit "'[a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.'" Cal- laghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181, at *9 (R.I. Super. May 23, 2017) (quoting 21 R.I. Gen. Laws § 21-28.6-7(a)(1)). "If an employee came to work under the influence, and unable to perform his or her duties in a competent manner, the employer would thus not have to tolerate such behavior." Id.

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