DRUGS IN THE WORKPLACE

VAPING

'Tommy Smokes'

Three ‘New’ Laws for Vaping

RCW 70.345.150“Use of Products in Public Places” – When Prohibited

The use of vapor products is prohibited in the following indoor areas:

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(ii) Schools;

(iii) Within five hundred feet of schools;

(iv) Schools buses

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(2) Outdoor areas. The use of vapor products is prohibited in the following outdoor areas:

Real property that is under the control of a school and upon which the school is located

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PRESCRIPTION DRUGS IN THE WORKPLACE

Employer vs. Employee Duties

Employee Duties

(1) Duty to consult with physician

(2) Duty to notify employer

(3) Duty to use leave or request (reasonable) change of duty

Employer Duties

(1) Review information and determine if employee can safely perform duties

EMPLOYEE MARIJUANA USE

EMPLOYEE MARIJUANA FAQ’S

(1) Can employers prohibit marijuana use during work hours (or regulate their impact)?

(2) Can employers continue to test for marijuana?

(3) What about off-duty marijuana consumption?

(4) What about medical marijuana use in the workplace?

BUS DRIVER MARIJUANA FAQ’S

(1) How does the law affect CDL holders?

(2) Is there a difference between the 5ng (nanogram) threshold and the 15ml (milliliter) threshold that urine tests from Department of Licensing (DOL) use?

EMPLOYEE MARIJUANA USE – A CASE STUDY

You’re doing an off-site training. A janitor comes in late and sits in the back. You walk past him, and he is reeking of burnt marijuana. You call over another supervisor, who also walks past the employee and smells the strong odor of burnt marijuana.

You decide to watch the employee during the training. The employee seems to act largely normal. The employee even asks a couple questions and responds thoughtfully to some feedback from the presenter.

After the presentation, you pull the employee aside and tell them that you believe that they recently smoked marijuana. The employee looks at the floor ashamed and doesn’t really respond. You tell the employee that they need to go get tested now. The employee looks really upset and responds with a quiet “I know.”

You put the employee on paid administrative leave pending the results of the drug test. The employee’s results come back, and you see that the employee’s THC blood level was tested at over 1,000 ng/ml. (A ‘positive’ drug test is 15 ng/ml. In Washington State, a DUI is 5 ng/ml.)

You look at District policy. It states that employees who show up to work under the influence are subject to discipline “up to and including discharge.” The employee did admit that they intended to head to work for their normal shift after the presentation was finished. Word comes down from the Superintendent that the new president of the board is pushing hard to discharge the employee. You decide to move for discharge. The union contests the discharge, and the matter proceeds to hearing.

How do you think it goes? Is the discharge upheld?

What Happens at the Hearing:Employee testifies that their doctor has recommended that they use marijuana (though no marijuana prescription is mentioned by the court.)

Employee testifies that they smoke marijuana nightly as a sleep and pain aid.

Employee testifies that they had smoked the evening before and hour or two before bed. The employee says they were wearing the same jacket while smoking as the employee wore to the training the following morning.

Employee testifies that their apartment is poorly ventilated and tends to trap odors.

Supervisors testify that the smell was very strong, and that they believe the employee likely smoked that morning. Upon cross-examination by the union, the supervisors have some difficulty explaining their basis of knowledge for knowing how recently the marijuana had been smoked.

Result:Discharge overturned. Arbitrator believes the employee.Arbitrator’s decision seemed to be substantially based on the fact that the employer and union had not negotiated a precise test or definition for being under the influence. The arbitrator did recognize that the generally accepted “under the influence” standard is 15 ng/ml, and the employee was between 1,000 and 2,000 ng/ml. However, the arbitrator more heavily weighed the testimony that the employee seemed to be functioning fine.

Lessons:(1) May want to consider negotiating specific marijuana testing limits in your CBA.

(2) Marijuana is tough to test for and to prove. Evidence can be temporary and fleeting. Admissions may be the best proof.

(3) If there’s no admission, expert testimony may be useful. Marijuana testing can be less intuitive than, for example, alcohol testing.

MARIJUANA AND CBD FOR STUDENTS

MARIJUANA AND CBD FOR STUDENTS(1) Provision of marijuana must follow District policy. However, the District must adopt such a policy upon parent request to administer marijuana at school;(2) The parent is still the only one who can administer or store the marijuana;(3) Marijuana may be administered by parent on school bus or school sponsored event in addition to at school; and(4) Student may not smoke or otherwise inhale the marijuana.

What if the Feds Threaten to Pull Funding?

CBD Products

LAST CHANCE AGREEMENTS

What are last chance agreements:(1) LCA’s are contracts between the employee, union and district.

(2) The district promises not to terminate the employee.(3) The union and employee promise not to grieve.

(4) The employee promises that another incident of similar nature will result in termination.

(5) The employee promises to do certain things.(6) Everyone promises that the LCA will apply instead of the just cause provision of the CBA.

What are the benefits of last chance agreements:(1) It avoids costly discharges or discharges that may be less than desirable:◦ Witnesses are not cooperative or are unavailable.◦ Students need to testify.◦ Other employees were not terminated for similar or lesser offenses.◦ Lots of mitigating factors (i.e., personal tragedy leading to employee’s bad behavior.)

(2) It allows you to retain an employee who deserves another chance. (3) If done correctly, it makes it easier to terminate next time (as compared to other forms of progressive discipline). Yakima v. Patrolman’s Ass’n, 148 Wash.App. 186 (Div. III 2009)

What are the specific things I should try and make sure to include in a last chance agreements for an employee who is having drug/alcohol issues?:

(1) Consent to Drug/Alcohol Testing (2) Cost of Testing (who pays for it?)(3) Notice of Concern and Recommendation for Help (OPP Concern).(4) Treatment and Ignition Interlock?