Medicinal Marijuana

Kconcrete · June 2004

Employee injured on job(supposedly)does get time off & must see a knee surgeon,it was discovered that the employee was smoking marijuana.He never disclosed this to the employer,and has some sort of card with a physician's statement for it's use, which the employer only got a copy of after the reported injury.He has been released to modified duty but the employer is concerned for the employee's safety & other employees safety if this guy is smoking marijuana. The employer does NOT want the risk. How can the employer avoid hiring this employee back ? We don't want to risk further injury or accidents because marijuana is a mind altering drug.

System · June 2004

Several things I see. I would not allow that person to do any safety sensitive work, with or without a doctor's card. It's no different than an employee using percocet or any other RX that may adversely affect his ability to work safely.

We deliberately do not have a written light duty policy. I fight to keep it that way. Hopefully you do not have to offer light duty. That's always a coin toss - Do we offer light duty which is a payroll expense and don't get much return in service, or do we deny light duty and let him draw his WC wages which drives up the experience.

Check his FMLA time and send him the application and a notice of 'Your Rights under FMLA.' Stay in touch very regularly with the employee. You can consider termination at the end of the FML but run it by your legal department.

Kconcrete · June 2004

Thanks Smoll, I guess what we are wanting to know is,because we were not informed of his marijuana use before the injury,then injured,and we don't have any light duty to offer, we are in construction, when his full release comes out, Is there a way NOT to re-hire due to the fact of the marijuana use and possible risk of further injury or injury to others. We have a NO DRUG policy which was signed by the employee. My Boss is very worried, he just doesnt want anyone else injured or even the employee. This guy may cause hazards due to his use of marijuana. That stuff makes you different, not think clearly. How can we avoid further risk ? How can we move on WITHOUT re-hiring this marijuana smoker ?

Don D · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-10-04 AT 01:10PM (CST)[/font][br][br]Kconcrete: Welcome to the asylum. You speak of this employee as if he has been terminated. You mention 'rehiring him'. Is he terminated. We had this very discussion a few weeks ago. I'm technologically challenged and can't tell you how to bring it up; but, I do recall that California is a whole other country when it comes to these things. Perhaps Gillian3 will clarify. By the way, the asylum is this conglomeration of good friends. Become one.

(edit)I found it! Go up to the search icon and click it. Enter 'marijuana' in the first field, click on subject in the second, select 3 months as the time frame and click enter. Actually, and lucky for you, the other posts were originated in California too. Maybe they'll help.

Kconcrete · June 2004

Well he wasn't terminated, that is simply the lingo I and the payroll service use. I guess in place of "returning to work".
To be honest I do not want this person back ! He may cause injury (somehow) and that seems like a bad decision on our part if something else were to happen to another employee. The other employee could come back on us because we re-hired this guy knowing he smokes marijuana.How terrible does that make us look ? So we would tell the new injured guy we had to by law ???? WOW that just doesn't seem right. As employers it should have been disclosed to use upon hiring.
I also would like to know that if he does get a full release, can we get it in writing that it's his doctors recomendation to go back to work knowing of this drug use ??
I seem to be babbeling now....and I'm sorry, I ma just concerned on how to handle this. Thanks everyone

System · June 2004

No, you do not have to take this employee back. If your policy says that he must notify you of medications he is taking that may adversely affect his performance, then he turns around and gets injured while he was taking medications that adversely affected his performance, then he blatently created a liability and his disregard for your work rule resulted in injury. Could have been worse or involved other employees. You can term him on that premise, but run it by your attorney first.

marc · June 2004

We forumites have been watching the developments in Mexifornia (or is Calexico?) to coin Don's phrase. Now that medical marijuana has been officially sanctioned by the State of CA (but not the Feds), businesses are going to have to find a way to deal with all of the issues that will arise.

With respect to the issue at hand, you have an individual who may have given you misinformation by ommission. Check the language in your EE signed NO DRUGS policy and see what the policy specifically says about informing the Company about this type of situation (prescribed drugs that may cause impairment). You may have a leg to stand on with respect to the EE not informing you - therefore lieing on the application or signed drug policy.

Otherwise, you probably have some issues that may not turn out the way you prefer. Please keep us informed as to your actions and the results. I am interested in how this turns out.

HR in CA · June 2004

I was the poster that Don referrs to from a couple months ago. My situation was similar to yours, with the exception that the employee had not been hurt nor had he hurt anyone else.

The issue that closed the issue for us was that in all of our contracts with our customers they do not allow any worker on the job sites how has received a positive drug test. We too were not informed until a drug test was taken by this employee (to comply with the contracts with our customer), then in a panic he discloses his card.

Do your policies state anywhere that an employee on medication with the usual warnings must inform the company of the fact? This is where my employee failed to follow policy and was terminated.

Gillian3 · June 2004

I really don't have anything to add to this since I haven't run into the situation. It makes sense to me, though, that you would expect an employee to clue an employer about the situation ahead of time, especially when the work has safety concerns and where the employee could injure themselves or others. Termination in such a situation seems appropriate. By the way, Calexico already exists - it is a community on the border.

Nina I · June 2004

Ah, here we are in CA...don't know if this helps, but we are a federal contractor that employes diabled individuals, many of whom, ah, shall we say, "self medicate." We understand that it comes along with the population (we employe many mentally ill employees). So, we have a Drug-Free workplace policy, and a post-accident testing policy. No random, or even suspected use testing. HOWEVER, we stick with the behaviors observed criteria, i.e. if you observe that an employee is not fit to work, i.e. glassy-eyed, cannot focus, stumbling, compromised eye/hand coordination, a sprv can send the person home, basd on concrete observations. He cannot simply smell alcohol, for example. Assuming someone is under the influence of a substance simply because they have a prescription for a drug, legal or otherwise, is dangerous in California. Ask yourself how you would handle it if you knew the person had an Rx for Vicodin for pain? Legal, but if they came to work after taking it and it affected their performance negatively, you would have every right to send them home until they are fit for work. You can also ask an employee to obtain clearance from their doctor that they are able to work, although given the poor ethics of some of the physicians we've seen, this may not help you. Good luck.

Medicinal Marijuana

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