Rock Products

JUL 2019

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www.rockproducts.com ROCKproducts • July 2019 • 47 LAW • Recently, the U.S. District Court in Arizona held that employ- ees have the right to file a lawsuit under the state medical marijuana law. Arizona state law prohibits employers from discriminating against a person who tests positive for mari- juana unless the cardholder used, possessed or was impaired by marijuana on the job, where that belief is based on a drug test sufficiently establishing the presence of metabolites or components of marijuana sufficient to cause impairment. Because the defendant (Wal-Mart) did not present expert testimony regarding these drug test results, the court found for the employee. Whitmire v. Wal-Mart Stores Inc., No. CV-17- 08108-PCT-JAT, 2019 WL 479842 (D. Ariz., Feb 7, 2019). Compliance State regulations on worker protection for medical marijuana users vary, making compliance challenging for companies operating in various states throughout the country. For exam- ple, in Oklahoma, state law provides that: "Employers may not take action against the holder of a med- ical marijuana license solely upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its component." This law applies to both applicants and current employees. Hence, a blanket pre-employment screening for applicants that test positive for marijuana will no longer be permissible for medical marijuana license holders in Oklahoma. States such an Illinois, Nevada and West Virginia also have varying degrees of protections for medical marijuana users in the workplace. To the contrary, some states that have legalized medical marijuana do not require that employers accommo- date an employee's use of medical marijuana. What to Do What is an employer to do given these variances in state medi- cal marijuana laws and case law? The short answer: a blanket zero-tolerance policy, especially for companies operating in many states, may not be possible. Since the purpose of most company policies on drugs and alcohol is workplace safety and some states have specific carve-outs for not allowing employees in safety-sensitive posi- tions to test positive for the drug, operators are wise to tie any marijuana policy to the common goal of safety where possi- ble. Operators should also closely review the state law of their operations, and develop a drug policy that is in compliance with their site's state-specific medical marijuana regulations.

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