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February 21, 2019

Medical marijuana in the construction industry

Kate Bischoff,

Jason Schwab


Building a drug policy: To allow or not to allow?
The issue of whether medical marijuana is protected under the American with Disabilities Act or specific state law has caused confusion in today’s workplace. The construction industry is no exception. In fact, it may possibly be even more of a legal and regulatory labyrinth than other industries, given the injury-prone nature of the business.

Medical marijuana vs. opioids
Injuries are an unfortunate part of any construction site. After all, these are physically demanding jobs and injuries come with the territory, not to mention the constant aches and pains. Construction workers commonly rely on pain pills to get through the day. But that day can turn into weeks, then months and then you have an addiction.

Opioids are undoubtedly effective in treating pain, but they are also highly addictive. The federal government has declared the opioid crisis a public emergency. Opioid abuse costs companies billions every year — and the construction industry suffers more than its share of missed workdays, healthcare expenses, job turnover and the costs of recruiting and retraining new employees.

Employers understand that they need to keep employees safe and pain-free, help them avoid addiction and remain compliant with federal and state law.

Medical experts note that marijuana can be significantly less addictive and it doesn’t lead to overdoses. A recent study revealed that 93 percent of respondents found marijuana to be a more effective pain treatment that produced fewer side effects than opioids; other research has found medical marijuana to be a less costly treatment than opioids

That’s why construction industry executives are at least discussing the use of cannabis as a potential alternative. They recognize that opioid abuse is on the rise and prescription pain killers are affecting their employees. And they realize that productive discussions must be had with law makers and medical professionals to discover other options for severely injured workers.

Legal, operational and cultural complications
Medical marijuana may look like the answer to pain relief without major addictive issues, but incorporating it into a construction workplace is highly complicated and potentially problematic. Even though medical marijuana has achieved greater public acceptance, the legal standing is unclear.

The federal government still considers marijuana to be a controlled substance. Courts have tended to rule in favor of employers that have chosen to terminate employment of those who test positive for marijuana, even when employees have a prescription. And several states have even required insurance carriers to make reimbursement payments for medical marijuana treatments for workers’ compensation claims.

There are also a number of operational and cultural challenges to accepting employees’ use of prescribed medicinal marijuana on jobsites and in construction settings. Construction firm executives can’t be faulted for wondering if some employees might get prescriptions — at the employers’ expense — to fund their recreational activities. 

Will medical marijuana ever gain acceptance within the construction industry?
Given the murky nature of federal law versus state law and how courts interpret each, it’s hard to tell if construction employees will ever be allowed to use prescribed medical marijuana instead of opioids.

With the majority of states allowing medical marijuana use, employers may be confused as to how medical marijuana will impact employment rights of employers and employees. States have complicated the situation and contributed to the confusion by enacting medical marijuana statutes that vary greatly from state to state. Employers in one state may be able to make employment decisions based on an employee’s medical marijuana use, while laws in other states may prohibit it and possibly even require accommodation of medical marijuana use.

It is vital that construction industry employers understand this new area of employment law and its implications for future employment decisions.

Best practices will emerge as medical professionals continue to investigate healthier and more cost-effective pain relief for workers without compromising a safe, drug-free workplace or violating state or federal law. That could mean that medical marijuana remains a viable medical solution — but to what extent will it be allowed?

Should the construction industry abide by state or federal law?
When federal law conflicts with state law, federal law prevails. The Americans with Disabilities Act (ADA) the Family and Medical Leave Act (FMLA), and the federal Drug-Free Workplace Act (DFWA) are all federal employment statutes that are governed and enforced in conjunction with other federal statutes such as the Controlled Substances Act.

The DFWA requires federal contractors and grantees to keep the workplace free of illegal drugs. Construction contractors who operate as federal contractors have to pay close attention to DFWA requirements so they don’t break federal law and risk losing federal contracts.

Federal contractors are required to maintain strict adherence to the DFWA regardless of conflicting state medical marijuana laws. The DFWA does not mandate drug testing, but employers that use DFWA-compliant drug policies and testing must continue to test for marijuana and enforce their current policies accordingly. 

The DOT is driving some of the restrictions on medical marijuana use.
Construction industry employers must additionally consider the implications of certain federal restrictions on drug use such as those imposed by the U.S. Department of Transportation. If you employ individuals who use a commercial driver’s license you have to follow the drug testing rules from the DOT and the Federal Motor Carrier Safety Administration (FMCSA). Some state medical marijuana statutes explicitly do not preempt federal statutes and regulations, but others aren’t nearly as clear. However, employers required to follow federal law and make employment decisions based on them may do so knowing that federal preemption should protect them when such decisions involve employee use of medical marijuana.

Navigating state-by-state can be more than a challenge.
Statutes and regulations differ greatly from state to state. How does a particular state’s medical marijuana statute impact your ability to make employment decisions that are related to medical marijuana? Well, regarding disability discrimination and accommodation, you’ll be confronted by three types of state medical marijuana statutes: ones that compel the company  to accommodate medical marijuana use; ones that aren’t specific; and statutes which explicitly do not force you to allow the use.

In Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. Conn. 2017), the federal trial court found that the federal Controlled Substances Act (CSA) does not preempt Connecticut’s Palliative Use of Marijuana Act, which prohibits employers from discriminating based on an employee’s medical marijuana use.

In states such as Massachusetts, where the Massachusetts Act for the Humanitarian Medical Use of Marijuana does not contain an anti-discrimination provision, job protection or private right of action by employees against employers, the courts must interpret the legislative silence. In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E. 3d 37 (Mass. 2017), the Supreme Judicial Court of Massachusetts held that the employer had a duty to engage in an interactive process with a medical marijuana user who suffered from Crohn’s disease to determine if the user could perform job duties with or without reasonable accommodation under Massachusetts handicap discrimination law.

In contrast to that decision, the Supreme Court of California held in Ross v. Ragingwire Telecommunications, Inc., 174 P. 3d 200 (Cal. 2008) that California’s Compassionate Use Act did not imply a duty to accommodate medical marijuana use.

These decisions point out the differences in how state courts interpret medical marijuana laws that aren’t specific regarding employment discrimination and accommodation, but courts are equally inconsistent in interpreting medical marijuana laws which explicitly provide no specific requirement on the employer to accommodate medical marijuana use.

What are your next steps?
Medical marijuana’s conflicting effect on state employment laws creates a situation where construction industry employers must remain informed of the current requirements in the states in which they employ individuals. Construction industry employers should get advice from in-house counsel or employment lawyers to ensure that policies and procedures are in line with current requirements of both federal and state employment laws in this constantly evolving area of law. 

The best way to create a drug-free policy that helps you be compliant with both federal and state law is to have a clear picture of your entire situation — legal, safety, employee needs and corporate culture. Your local Marsh & McLennan Agency representative can work with our experts on employment law and employee communication to help you make your next move the right move.