By Kathryn J. Russo and Donna Vetrano Pryor
How Do State Laws Affect Employers And Mine Operators In Particular, Who Are Required To Comply With MSHA’s Regulations?
In recent years, 20 states have legalized “medical marijuana.” In most states this means a physician-prescribed use of marijuana for patients suffering from cancer, AIDS, multiple sclerosis, pain, glaucoma and similar debilitating illnesses.
All mines are under the jurisdiction of the federal Mine Safety and Health Administration (MSHA). So how do these state laws affect employers and mine operators, in particular, who are required to comply with MSHA’s regulations prohibiting the use of intoxicating beverages and narcotics in or around mines as well as prohibiting persons under the influence of
alcohol and narcotics from being on the job?
Though individual state laws differ, some medical marijuana statutes provide that an employer may not discriminate against a person in hiring, termination, or imposing any term or condition of employment or from otherwise penalizing a person based upon:
(1) The person’s status as a medical marijuana cardholder, or;
(2) A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.
In fact, these laws typically allow employers to prohibit employees from using, possessing or being impaired by marijuana at the work place or during work hours. Thus, an employer may lawfully terminate employees who use or possess marijuana at work, or report for work impaired by marijuana.
Other state laws provide that testing positive for marijuana can support an employer’s good faith belief that an employee either used or possessed a drug, or had an “impairment” while working, while on the employer’s premises or during the hours of employment.
Good Faith Belief
Based on this good faith belief, an employer may be able to terminate an employee that tests positive for marijuana, even if he or she has a medical marijuana card.
Of key importance to the mining industry, some medical marijuana statutes except “safety-sensitive positions” from the proscription on refusing to hire and terminating otherwise protected individuals.
A “safety-sensitive position” is typically a job that includes tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others. These tasks may include operating motor vehicles, equipment, power tools or machinery; or repairing, maintaining, or monitoring the performance or operation of any equipment, machinery or manufacturing process.
Any position where an employee is required to be on mine property arguably would be considered a safety-sensitive position. The extensive presence of heavy machinery, equipment, vehicles and hazardous chemicals, as well as the countless hazardous duties that are performed in mining operations, reasonably could affect the safety of employees on the property. Hence, these safe harbor provisions for employers in some state laws would likely be applicable to mine operators.
Federal Law and Medical Marijuana
MSHA regulations provide: “Intoxicating beverages and narcotics shall not be permitted or used in or around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job.” 30 C.F.R. § 56.20001. Lack of compliance with any MSHA regulation could result in fines, federal investigations, civil or criminal penalties, or the closure of a mine.
Although courts have not yet weighed in on this issue, MSHA’s standard would likely displace (preempt) a state medical marijuana law and require that any employee testing positive for marijuana, including that used for medical use, not be permitted on mine property.
Additionally, employers who employ safety-sensitive workers regulated by the U.S. Department of Transportation (DOT), for example, commercial motor vehicle drivers regulated by the Federal Motor Carrier Safety Administration, are prohibited from allowing such workers to use medical marijuana. DOT maintains that safety-sensitive transportation workers never are authorized to use marijuana, and that a positive drug test result may not be excused by a medical marijuana card.
Most importantly, marijuana is illegal under federal law. In fact, under the federal Controlled Substances Act, 21 U.S.C. § 812, marijuana is a Schedule I drug. This means that marijuana:
(1) Has a high potential for abuse;
(2) Has no currently accepted medical use in treatment in the United States; and,
(3) There is a lack of accepted safety for use of the drug under medical supervision.
The U.S. Supreme Court has held that the Controlled Substances Act does not contain a “medical necessity” exception that permits the manufacture, distribution or possession of marijuana for medical treatment. In 2011, the federal Drug Enforcement Administration rejected a petition to re-schedule marijuana under Schedules III, IV or V of the Controlled Substances Act, permitting its use in certain circumstances, and the D.C. Circuit Court of Appeals upheld that decision in January 2013.
With the proliferation of medical marijuana laws (and legalization in two states), and the fact that individuals can test positive weeks after marijuana is used (if they are chronic users), employers may see more discrimination claims arising out of medical marijuana usage.
One issue that we all can agree on is that safety is the overarching concern when medical marijuana is used by employees working on mine property. In the interests of safety, under state and federal laws mine operators should be able to discipline their employees who test positive for marijuana.
Drug and alcohol testing programs should be supported by MSHA. State medical marijuana laws should not restrict such programs unduly, either by express prohibition or by creating uncertainty as to employer rights.
A robust drug and alcohol testing policy is a great addition to your safety program. If your facility is in a state with a medical marijuana law, be sure your drug and alcohol program and/or policies are drafted to comport with state law so you benefit from any state safe harbor provisions that may apply.
Kathryn Russo is a partner in the Long Island office of Jackson Lewis and can be reached at [email protected]
Donna Vetrano Pryor is a partner in the Denver office of Jackson Lewis and can be reached at [email protected]