Foundry products cannot reach their intended market without the labor of humans. That can often mean issues related to employment and labor steal attention away from the critical operational issues of the foundry. While the issue of marijuana use may not always be at the front of our minds in relation to a foundry operation, it can certainly affect operations safety, relations between different sectors of the workforce, and many more operation factors. As more states legalize marijuana use for medical or recreational purposes, employers continue to struggle with how to address the issue in the workplace. Your foundry may find that writing and communicating a clear and consistent marijuana policy to be valuable prior to the actual need for the policy.

Despite medical marijuana (or cannabis) laws in 46 states (as of the writing of this column), marijuana is still illegal under federal law. The federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. § 811), which does not recognize the difference between medical and recreational use of marijuana. However, these laws are generally applied only against persons who possess, cultivate, or distribute large quantities of marijuana, so you may not be surprised to read some people openly grow, sell, and consume marijuana products. Because of this, employers have to be prepared for the fact that it is now much easier to obtain marijuana—and in new forms such as oils, creams, brownies, etc. How are employers supposed to know what products may be laced with marijuana? This information may be difficult to ascertain, but employers may want to start being more mindful of changes in employee performance and indicators of an employee’s influence of marijuana and other drugs.

Despite the federal statutes banning the possession, cultivation, and distribution of marijuana, many states have enacted medical and recreational use statutes. Furthermore, statutes in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island provide some employee protections from discrimination primarily on the basis of being a medical marijuana cardholder or for testing positive for marijuana during a drug test.

The Massachusetts Supreme Court also recently ruled that employers may need to accommodate off-duty medical federal marijuana use in certain situations; New York has a similar policy. This can mean if an employee in one of these states is using marijuana with a medical marijuana card, employers likely cannot terminate their job on that basis. However, if an employee is using marijuana recreationally, the employee’s job would likely not be similarly protected. Other state decisions indicate that possession of a medical marijuana card may not protect an employee’s job while violating work drug policies, but it may protect their employee benefits. Again, these rulings vary from state-to-state, so you need to consult your business attorney who needs to be familiar with the current state of marijuana laws in the state(s) where the foundry is located and/or where the foundry employees are working.

In the majority of states, including California, employers do not have to make accommodations even for off-duty medicinal use. The current case law in California makes that clear, but the law could evolve as attitudes regarding marijuana use change over time. The underlying issue is that a medical marijuana cardholder may have an independently qualifying medical condition. Therefore, employers may want to engage in an interactive process even if it is not required by law.

Despite the relatively new state statutes permitting medical marijuana use, law enforcement officials may prosecute medical marijuana patients, even if they grow their own medicine and even if they reside in a state where medical marijuana use is protected under state law.  The United States Supreme Court indicated in the ruling of Gonzales v. Raich (2005) that Congress and the Food and Drug Administration should work to resolve this issue. The Raich decision does not say that the laws of any medical marijuana state are unconstitutional; nor does it invalidate them in any way.  Also, it does not say that federal officials must prosecute patients. 

Decisions about prosecution are still left to the discretion of the federal government.

When developing your marijuana and drug use policy, keep in mind many employers regard recreational marijuana use just as they would recreational alcohol use, with the additional understanding that unlike alcohol, marijuana is still illegal under federal law. Certainly, many foundries already apply a drug-free workplace policy; however, if your foundry does not, perhaps it is time to consider it with the advice of your business attorney.

Employers do not have to tolerate on-the-job intoxication even if a worker is using marijuana for medical reasons, so accommodations might include additional time off or a leave of absence for the period the worker needs to use the drug. Workplace policies should clearly state employees cannot be drunk, high, or otherwise impaired while at work. Everyone needs to know they cannot have an edible at lunch and come back to the office or go back to the foundry floor. An workplace drug policy may, in order to be most effective, address the current attitudes of the time and not rely upon the same old drug and alcohol policy. 

Click here to see this story as it appears in the January-February 2019 issue of MCDP.