Miners and marijuana

As 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 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 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 of Transportation remain unaffected by state laws. Only if and when federal laws change might different rules apply.

It is not likely, however, that changes would limit the company’s ability to restrict marijuana when it could affect employee safety or proper job performance. Any impairment regarding work performance, especially in safety-or-security-sensitive positions, is necessarily within the employer’s discretion. Prescription drugs, including marijuana, may be legal but still unacceptable in the workplace if they can adversely affect the using employee, other employees or the employer’s property.

Laws regarding marijuana, including federal laws, will continue to evolve. In May for example, the Senate Appropriations Committee voted to back the Veterans Equal Access Amendment, which would allow veterans suffering from post-traumatic stress disorder or chronic pain to be prescribed medical marijuana by their Veterans Administration doctors. Supporters urge that marijuana is more effective, less debilitating and less addictive than many prescription drugs.

Take note

MSHA regulations state that people under the influence of alcohol or narcotics shall not be permitted on the job.