Pit & Quarry, July 2015

Miners and marijuana A s in other industries mining companies must contend with employees and contractors using or being influenced by illegal drugs in the workplace Marijuana is one of the most prominent substances detected in drug screens of job applicants Mine operators have routinely made blanket prohibitions against marijuana for safety and legal compliance But what about marijuana prescribed for medical purposes And what about recreational use of marijuana away from work in states that allow marijuana use without a prescription Laws are changing rapidly Twenty three states have authorized medical use of marijuana and 18 states have decriminalized marijuana possession apart from medical use Alaska Colorado Oregon and Washington have legalized recreational use Fifty seven percent of the United States population resides in states where marijuana may be used within state imposed limitations without adverse legal consequences Regarding employment policies Colorado is illustrative of state reluctance to interfere with employer discretion Employers may apply their traditional drug policies and testing procedures because state laws do not require employers to allow marijuana use or permit people to possess marijuana or be under its influence in the workplace Also marijuana remains illegal under federal law In Colorado a constitutional amendment expressly allows employers to continue with drug testing policies that make no exception for marijuana Federal law Because marijuana remains illegal under federal law companies have every reason to test for and bar employees from using it Marijuana BY MICHAEL T HEENAN prohibitions that employers have long considered prudent and necessary remain lawful They are not controlled by what states authorize for medical or for recreational purposes MSHA and OSHA regulations do not address medical or recreational use of marijuana as legalized under state laws Neither agency has issued any guidance on how off duty use of marijuana affects workplace safety However the regulations of both agencies are clear that substances hazardous at work or illegal under federal law are prohibited In the mining industry MSHA regulations for metal and nonmetal mines state that intoxicating beverages and narcotics shall not be permitted or used in or around mines MSHA regulations also state that people under the influence of alcohol or narcotics shall not be permitted on the job While marijuana may not be a narcotic MSHA has interpreted and enforced this regulation as prohibiting people from using or being under the influence of marijuana on mine property Mine operators are under a legal obligation to prohibit marijuana use that could affect work performance and safety on the job Putting aside whether trace elements of marijuana found during medical screening constitute being under the influence MSHA has never faulted employers for zero tolerance drug screening policies The Americans with Disabilities Act ADA requires employers to make reasonable accommodations for disabled people Employees who felt their employer was not accommodating MSHA regulations state that people under the influence of alcohol or narcotics shall not be permitted on the job their disability have sued employers State government agencies are also sued sometimes for failing to provide public accommodations for people with disabilities Court case The United States Court of Appeals for the Ninth Circuit considered a case in 2012 in which disabled plaintiffs challenged actions by the city of Costa Mesa Calif to bar medical marijuana dispensing facilities Plaintiffs claimed they were being deprived of public accommodation for medication essential to relief of pain The court said this We recognize that the plaintiffs are gravely ill and that their request for ADA relief implicates not only their right to live comfortably but also their basic human dignity We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain Congress has made clear however that the ADA defines illegal drug use by reference to federal rather than state law and federal law does not authorize the plaintiffs medical marijuana use We therefore necessarily conclude that the plaintiffs medical marijuana use is not protected by the ADA All employers subject to drug control mandates of agencies such as MSHA OSHA and the Department Continued on page 63 34 PIT QUARRY July 2015 www pitandquarry com