Marijuana, Safety, and Fairness: Part 1
Evolving Legal Landscape Reshaping Opinions on Marijuana Use and Workers’ Rights
Marijuana was criminalized in the United States in 1937. For 75 years, that was the law of the land, but in 2012, a wave of decriminalization in the US began when voters in Washington state legalized recreational use. Since then, 24 states and Washington D.C. have followed suit. Meanwhile, 40 of the 50 states have enacted laws that allow for the use of marijuana for medicinal purposes.
Although federal prohibition remains in effect, like the prohibition of alcohol from 1919 to 1933, the reality is that the open use of marijuana is quickly becoming culturally normalized. According to research by Colorado University, in states where marijuana is legalized, residents use it 24% more frequently, and in the U.S. as a whole, about one in five adults have used cannabis in the last year.
WHY DOES THIS MATTER TO UNION MEMBERS?
Reefer’s retail revolution is taking place against a backdrop of record lows in unemployment. In order to hire, some employers waived drug testing of incoming employees. Others may be willing to adjust policies. It’s an opportunity for unions to drive change in a fashion that provides job protections while maintaining union safety standards.
A major issue for our members who legally partake in recreational marijuana use when they’re off duty is that there is no reliable drug testing technology that can identify whether a worker is under the influence at the time of testing. In fact, a person can test positive for marijuana use 30 days or more afterwards. Since only a few of the states that legalized marijuana embedded employment-related protections in their marijuana statutes, it falls to us to bargain for language that reflects the shop floor reality: workers who use marijuana away from work are still at risk of testing “hot” for drug use should an accident occur.
This, in turn, creates a danger of members trying to hide workplace accidents to avoid drug testing even in states where marijuana is legal, a situation we can work to avoid. Important too is that we bust the myth that drug testing is a sufficient response to workplace accidents. Drug testing is not an adequate substitute for comprehensive root-cause accident investigations.
MODEL LANGUAGE
Disclaimer: Sometimes, trying to plug model language into an existing Collective Bargaining Agreement (CBA) or drug-testing policy is like trying to fit a square peg into a round hole. The following “model principles” may need to be reshaped to fit a particular workplace or CBA. When you are in bargaining or dealing with a grievance and you need assistance addressing drug-testing issues, please contact your Staff Rep who can help you get advice from the USW Legal Department that is tailored to your situation.
“PROBABLE CAUSE.” This is a standard that can be used under a drug-testing policy as a threshold requirement before testing is permitted. It requires that an employer document objective observed symptoms of impairment that align with symptoms associated with drug and alcohol intoxication.
Language: Probable cause is based upon an observation and good faith belief that an employee is under the influence of drugs or alcohol while on the job. Such belief may be based upon the smell of alcohol, slurred speech, staggering gait, and/or other abnormal physical or psychological behavior typically associated with drug or alcohol intoxication or impairment. Whatever the observation, it shall be made by two management persons and documented in writing. Probable cause may be based upon an employee’s involvement in an accident/incident on company premises only where, as part of an immediate observation, there is probable cause as described above to believe that drugs or alcohol may have contributed to the cause of the accident or incident. If probable cause is not determined, the employee shall not be subjected to testing. Where hospital treatment is required for an injury, the test, if applicable, will be performed at the hospital.
“POST-ACCIDENT TESTING.” It’s worth noting that employers are obligated to allow union representation upon request ahead of drug-testing.
Language: An employee may be tested after an accident which resulted, or could have resulted, in an injury. However, a test may only be administered where the accident resulted from an error by the employee being tested, and where a supervisor describes the accident and the employee’s potential error in writing prior to the test. A union representative shall be notified in advance of the test. If the employee was injured in the accident, the testing must not delay treatment.
“OPTIONS AFTER FIRST POSITIVE TEST” can be solutions-based instead of strictly disciplinary.
Language: If an employee tests positive for the first time, the employee will be offered the chance to enter a rehabilitation program or to continue working without rehabilitation. If the individual chooses to continue working, they will be subject to random testing for no more than one year. If the individual chooses rehabilitation, they may be randomly tested for up to one year at the discretion of the rehabilitation provider.
“MEDICAL MARIJUANA.” Remember that in addition to recreational use, some workers are prescribed marijuana by a doctor, and therefore can warrant additional and substantial job protections.
Language: For individuals who are medical marijuana patients under the laws of the state in which they reside, neither marijuana nor any other substance derived from marijuana, the use of which is permitted by the laws under which they are a patient, shall not be regarded as a “controlled substance” or “illegal substance” under this policy.
Language like the above creates procedures that the employer must follow. Whether that language was followed may become the determining question at arbitration. Indeed, negotiated language will be applied more strictly than policies that are unilaterally implemented by the employer.
If you or someone you know needs help with drug-related issues, please know that staff reps can get information about programs to help those struggling with addiction.
Marijuana, Safety, and Fairness: Part 2
This article continues last month’s overview of marijuana as a workplace issue. In particular, we review how arbitrators have ruled on the topic.
In November of 2023, the Labor Arbitration Institute published two questions that were asked at a recent conference. One of New York State’s leading arbitrators in cases involving marijuana and drug testing was present and answering questions; remember, this is one arbitrator in one state, but the answers are interesting. Note: New York legalized recreational marijuana use in 2022.
CAN EMPLOYERS MAKE RULES LIMITING RECREATIONAL USE?
The first employer wanted to know if a rule prohibiting employees from using marijuana for recreational reasons off-the-job would be considered reasonable. This is a question that arises when a contract limits the employer’s ability to implement policies unilaterally by a reasonableness standard. The employer’s motivation is that they don’t want employees showing up with marijuana in their system.
The arbitrator responded, “no,” indicating that they would not uphold the rule, and went on to say, “What an employee does on his own time is none of the employer’s business.” For a worker’s off-duty, off-premises conduct to be relevant, the employer has to show “nexus” That means that there has to be some “connection” between the employee’s off-duty conduct and the workplace.
Rules or procedures for testing and discipline are more likely to be upheld if bargained. The arbitrator gave the example of contract language stating that if workers test above a certain threshold, they will be discharged. “When the parties negotiate that, they have told me that any test result above the limit will be just cause for discharge. I uphold those discharges.”
The arbitrator also said that in their view state and federal laws are unimportant, “What matters is whether the employee is impaired.”
HOW CAN AN EMPLOYER PROVE IMPAIRMENT?
The second question related to how the employer can prove impairment. The arbitrator responded: “That has to be shown by the people who observed the grievant. I have reinstated employees who have tested above the limit because the employer did not give me evidence of how they were unable to do their job.”
Basically, the employer needs to have evidence that the worker was impaired while working. For example, managers who can “testify that the grievant had glassy eyes, slurred speech, listlessness, inattention to work, or some uncharacteristic behavior.”
These observable symptoms give an employer “reasonable suspicion,” a standard that can be bargained for to determine when a worker can be forced to submit to drug testing. The arbitrator also said they take in to account the nature of the employee’s job and its safely requirements.
For example, in a recent arbitration, an arbitrator found that an employer did not have “reasonable suspicion” to test a worker who refused to take an alcohol/substance abuse test after he refused a work assignment because he claimed he was too sick to do it. [United Parcel Serv., 126 LA 1088 (Draznin, 2009).] The employee’s supervisors had cited withdrawal, anxiety, and moodiness as reasons to test the employee, but the arbitrator rejected those grounds as insufficient to provide reasonable cause.
The arbitrator construed that this did not meet the provision outlined in the collective bargaining contract, which stated that:
“[r]easonable cause is defined as an employee’s observable action, appearance, or conduct that clearly indicates the need for a fitness-for-duty medical evaluation.”
The arbitrator clarified, “Reasonable cause to challenge the fit-for-duty of an employee mandates that the observable action, appearance or conduct provide clear indication that there is a question whether the individual can continue to work in the state she or he is in.”
“Reasonable suspicion” also cannot be based on a worker’s history of drug use. So, where an employer tried to say they had “reasonable suspicion” based on a worker having been caught smoking marijuana in a plant four years earlier, the arbitrator ruled that this in insufficient. [Packaging Corporation of America, 120 LA 634 (Sugarman, 2004).]
Another arbitrator found that an employer unlawfully discriminated against a worker by requiring them to submit to drug test on day of an in-plant injury, where on other occasions workers were permitted to be tested at a later date. [Munster Steel Co., 108 LA 597 (Cerone, 1997).] In that case, the uneven application of the policy undermined the employer’s just cause defense.
These cases show that Just Cause and industrial due process principles apply in marijuana-related grievances and arbitrations. Through bargaining we can create protections for employees who avail themselves of medical or recreational marijuana off-duty.
CONCLUSION
Under federal labor law, drug-testing is a mandatory subject of bargaining, meaning that an employer must bargain over it. Because drug-testing is subject to bargaining, we can request A LOT of information about it, which can have many advantages.
Unions can demand information about: the purpose of the proposed policy and basis for the employer’s belief that the policy will promote that asserted purpose; record keeping and privacy aspects of the proposal; circumstances that would trigger testing under the policy; the kinds of drugs for which tests will be used and how positive tests will be determined; rehabilitation opportunities; and past experiences of testing at the facility, among many more subjects.
We can bargain for language that requires visible symptoms of impairment be independently observed by two members of management prior to testing so as to reduce the risk of bias. We can also demand that as a prerequisite to testing the employer notify a union representative and ensure access to union representation in the event the employee desires such representation.
We can ensure that employees have access to an employee assistance program either voluntarily in lieu of testing or after receiving an initial positive test. Drug-testing policies should facilitate support for employees that need it.
Last, as a reminder, please contact your staff rep who can help you get advice from the USW legal department should you need assistance dealing with drug-testing issues in grievance processing or bargaining. And, if you know a member who needs help with drug related issues, staff reps can also get information about programs to help those struggling with addiction.