If you’re an owner of a delivery company that operates in Colorado or Washington, you may be currently considering how you’ll handle marijuana use once it becomes legal. So far, if you choose to keep a no-tolerance drug policy, you’ll still be able to fire employees who test positive for marijuana. But what if you decide to change your policy? Will your company face a greater legal risk? How can you be certain employees don’t use while on the clock?
In the article, “New Liability Exposure: Employee Drivers Using Medical Marijuana,” by Mike Antich, editor and associate publisher of Business Fleet, Antich expressed his concern with the new regulations (although he only considered employees who use medical marijuana—not recreational marijuana—as that law will not be in effect until 2014) and sought outside council on the matter:
“The only legal prohibitions would be whether specific state laws prohibit patients prescribed marijuana for medicinal purposes from driving,” said Richard Alaniz, attorney and senior partner at Alaniz and Schraeder, LLP. “However, employers may legally prohibit the use of medical marijuana in the workplace and may prohibit employees from reporting to work or reporting for duty while under the influence of medical marijuana.” If an employer did have a policy that prohibited medical marijuana, then any employee would not be allowed to do anything for the company while under the drug’s influence. If an employee violated the policy, the worker could be rightfully terminated.
Rules governing the use of marijuana by drivers with a commercial driver’s license (CDL) are more defined. “Under the federal motor carrier safety regulations, no driver holding a CDL shall report for duty or remain on duty when he or she uses any of a specified list of controlled substances, of which marijuana is one,” Alaniz said. “For the purposes of the federal motor carrier safety regulations, it does not matter whether such a driver is using marijuana pursuant to a proper prescription or for illegal recreational use—a CDL-holding driver who uses marijuana is not only prohibited from operating equipment if he or she uses marijuana, but even from remaining on duty.”
A HR manager cannot tell an employer that an employee uses medical marijuana. According to The Health Insurance Portability and Accountability Act of 1996 (HIPAA), HR managers cannot divulge medical information to a third-party without an employee’s permission.
To avoid corporate liability issues if a medical marijuana user is involved in a preventable accident, address the issue in advance in the company’s fleet policy by prohibiting its use. “If the employer does not have reason to know that the employee uses medical marijuana, and if the employer does have a company policy prohibiting employees from reporting to work or reporting for duty while under the influence of medical marijuana, then the employer will not be subject to liability,” Alaniz said. “If the employer did have reason to know that the employee used medical marijuana, or has failed to adopt a company policy prohibiting employees from reporting to work or reporting for duty while under the influence of medical marijuana, then the employer can be held liable.”
Make certain your company’s fleet policy is updated regularly. If you add a provision that prohibits medical marijuana use, put the policy change in writing and make certain all employees see the policy. When you’re drafting the policy, make certain to consult employment law council.
Fleet policy must be a living document and updated regularly. Prohibitions about the use of medical marijuana while operating a company vehicle must be documented in writing and drivers must acknowledge receipt, Alaniz said. Managers should know the drug-testing requirements of the federal motor carrier safety regulations, he said. Alaniz also advised that if a manager finds out an employee uses medical marijuana, the employee should not be permitted to drive for company purposes or drive a company vehicle.