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Marijuana and Workplace Safety

safe zone

Marijuana and Workplace Safety – What Does Common Sense Say?

If you were so inclined, you could spend months researching evidence regarding marijuana use and its potential effects on health and safety. For every study you find to support one side of the argument, you’re just as likely to find a study countering it. And in doing so, most would evaluate whatever evidence they find, knowingly or unknowingly, with an element of confirmation bias which is the tendency to evaluate evidence in a way that confirms one’s preconceptions.

As such, it can take a significant amount of time and effort to locate and interpret reliable, unbiased, scientific information and evaluate it in an unbiased way. There goes you weekend.

If you were to believe the pro-marijuana crowd, marijuana seemingly has no effect on workplace safety, car crashes, or few or no negative effects on health.

However, there are just some things in life which just seem to be evident, whether by simple common sense or by real world experience. This leads us to a recent marijuana-related post on the popular blog site Gawker.com. The post entitled “Don’t Ever Call the Cops on Yourself, Even When You’re High as Sh*t” tells the story about a 22-year-old Ohio man who, while high, called the police (listen here) on himself telling them that he was “too high on weed.” The police report reads” The officer walked into the doorway and observed [REDACTED] laying on the floor, in the fetal position. [REDACTED] was surrounded by a plethora of Doritos, Pepperidge Farm Goldfish, and Chips Ahoy cookies. [REDACTED] stated to this officer that he could not feel his hands.”

We could stop right there and apply our “common sense” filter and come to the conclusion that being under the influence of marijuana is undoubtedly a potentially serious safety issue both for the user and for those around them. This genius marijuana user is certainly not capable of remotely comprehending the consequences of his actions. God forbid he gets behind the wheel, or say needs to operate a semi-truck or crane the next morning. But just as interesting, as it often is on blog-type websites, are the comments below the story. They often are full of “me too” type anecdotes in which others get the opportunity to share their experiences. If you somehow have found yourself believing the pro-pot crowd that marijuana isn’t a threat to health and safety, we’ve presented some of the comments here for your enjoyment.

“I called an ambulance and spent most of my night at the ER one time because I vaped all the kief in my grinder and thought I was having a heart attack. Thank god for Obamacare.”

“I once found(!) some weed after being sober forever, and had a panic attack. I knew what was happening though, so I just laid flat on the ground and focused on breathing slowly for about 20 minutes.‘You never think it will happen to you until it does’ was my takeaway for the evening.”

“Story time. Third time I ever smoked was a first time for a mutual friend. He started out fine, we played Tony Hawk and ate bagel bites. Then in a split second he drops the controller, runs to the middle of the backyard and assumed the prayer position stating that he thinks he’s dying. Starts verbally praying to god and begging me to drive him to the hospital. It was nuts and I really felt for the guy. I made a deal with him and said wait 30 minutes and I’ll drive you. Thank goodness he came down off the high perch.”

“My boss invited me to his wife’s bo-0-r-ing birthday party. I had some fine Columbian gold; that’ll lighten things up right? I ground up about a gram, chased it with a beer, and headed out. By the time I got to the restaurant, dude, I was flyin’; I thought the hostess was going to offer me a bag of peanuts and tell me to fasten my seatbelt….After an hour or so, I was so stoned, I was nearly comatose…When the party was finally over, I couldn’t find my car; the hostess called me a cab.”

Well, so there you have it. Do you really need folders full of scientific data to realize that marijuana users might have be a threat to safety in the work place or have a negative effect on the health of the user? The question is, would you want any one of these guys working for your company? Operating heavy machinery the next day? Making critical decisions? Operating a vehicle?

I don’t know. You can have your studies; I’ll stick with my common sense.

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Reasonable suspicion drug testing union employees

Do Your Employees Have the Right to a Union Representative During a Drug Test?

Recent court case affects how companies might need to manage reasonable suspicion drug testing union employees.

A recent court case in N.J. may come as a surprise for some employers with union employees. In May 2014, Administrative Law Judge Steven Davis ruled in favor of an employee who was terminated for not submitting to a reasonable suspicion drug test. The employee, Joe Garcia Diaz, who allegedly “reeked of the smell of marijuana” and exhibited “bloodshot and glassy eyes” while on the job, had declined to submit to a reasonable suspicion drug test without the presence of a union representative. Diaz’s supervisor notified him that his failure to immediately submit to the test would be treated the same as a positive result, potentially resulting in his termination. He refused, and subsequently was discharged for “his refusal to submit to substance abuse testing based on reasonable suspicion.”

On August 27, 2015, a three-member panel of the National Labor Relations Board (NLRB) issued Manhattan Beer Distributors, LLC and Joe Garcia Diaz, (29-CA-115694) finding that an employer had unlawfully denied an employee his right to the physical presence of a union representative during a reasonable suspicion drug test.

Interestingly enough, the NRLB states…

“Where an employer insists that an employee submit to a drug and/or alcohol test as part of an investigation into an employee’s alleged misconduct, the employee has a right to union representation before consenting to take the test.”

Employers have three options:

(1) Grant the employee’s request (to require union representative “physical” accompaniment)

Note: The NLRB states “At the very least, the physical presence of a union representative was necessary in order to permit the representative to independently observe Diazs’ condition and potentially contest the grounds for suspicions.”

(2) Give the employee the option of proceeding without representation.

(3) Dis-continue the interview and make a disciplinary decision based on the information it has available (In this case, they recommended the employer discharge the employee not for refusing to take the test, but rather for prior employee actions or information not related to the drug test event.)

This is despite the fact that delaying a drug or alcohol test could ultimately affect the outcome of the test result. To that, the NLRB stated they although the recognized the employer’s right to test in a timely manner, that in this case, the employee was not given sufficient time to obtain Union representation before he was discharged. In their decision, NLRB also weighed the fact that that the signs and symptoms observed were marijuana-related, which lessened the importance of immediate testing as the outcome of the marijuana test likely would not have changed within a short window of time.

The NLRB required Diaz to be reinstated with back pay, without prejudice and required the employer to cease and desist from:

(a) Requiring employees to submit to a drug test as part of an investigation into their behavior or conduct

notwithstanding their request to have a union representative at the investigatory interview.

(b) Discharging employees because of their refusal to submit to such a drug test without having a union representative at the investigatory interview.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them.