Medicinal Marijuana and the workplace

HR in CA

I have an employee who has a prescription for medical mariquana. The authorization expired last week. I want to know that the doctor continues to believe that the employee still needs it. However, our concern is that the employee does construction work. I know the law does not prohibit the employer from restricting it during work hours and while on the job, however part of the essential functions of the job require the employee to be on utility poles, ladders or on the tops of building up to 75 feet in the air.

My question is can I ask the doctor who wrote the prescription to review the job description and make a determination if the employee can do the job safely? And be able to ask the doctor if he plans to extend the prescription or allow it to expire as it did last week? And just to add one more wrinkle, this employee has not been cooperating with any requests recently and I do not feel he will do anything to help us get this information. Do I have to go to the employee or can I just go to the doctor and have the doctor get the needed release signed by the employee?

We found out of the medical need when the employee was asked to take a drug test per the contract with our customer. We do not know why he has been prescribed or how much. However, it seems as we could have a potential safety issue.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 04-26-04 AT 03:25PM (CST)[/font][br][br]Subject to being totally wrong in the country of California, my advice is that any of us in any part of the country can, using our best professional judgement, make a decision to suspend an employee from certain parts of a job, or the entire occupation until and unless we have a written opinion from his physician that he can perform all of the duties of that job while utilizing the medication that physician prescribed. I would approach this simply as a safety concern which in the rest of the country I feel you would be held harmless. Your primary concern is for the safety of your employees and others working with him. Ask yourself how you would handle this situation if it came to your attention that this employee were using a narcotic pain medication and he were climbing poles and ladders and functioning as a team member with other climbers.

(edit) Back in the day when I toked a joint or two, the fool who let me climb a pole or ladder was only a bit bigger fool than I, depending on whose lawyer you asked.

Balloonman

I would grant him an unpaid leave of absence.... I as a Certified Safety Professional, CSP fire those testing positive, and would not allow an employee using medical marijuna to operate equipment or be in a safety sensitive position.
Also per our policy someone on tylenol 3 w/ codine would be in the same situation.
The lack of cooperation is a whole seperate issue.
My $0.02 worth!
DJ The Balloonman

Don D

If he were using the drug legally, under prescription, he would not be shown as a positive after the MRO had gotten this additional information verified. Therefore, the issue isn't one of testing positive, but of the safety of himself and others. His prescribing physician should be de-licensed if he says that the man can perform safely on ladders and poles while stoned. And if that is the outcome, I would report it to the licensure board. But, I tend to forget you are in the 10th District.

Dan

Bottom line is you need a work release from the doctor stating he can safely do his job while on this medication.

Kconcrete

Which doctor should I get the release from ? The one that issued the "Pot Prescription" or the surgeon he went to after the injury ? Which coincidentally was the surgeon that operated on his knee several years ago from a prior injury...this is all so frustrating
My boss is really concerned that by him smoking this stuff may damage the integrity of our workmanship and damage the all around company as a whole. We just can't afford to re-do his work if it's done incorrectly from being under the influence of any drug.

HR in CA

The doctor who issued the employee the prescription for the drug. Send along with your request a detailed job description and ask the doctor for a WRITTEN opinion based on the job description and the amount of drug the person has been prescribed.

Please keep us posted on this proceeds.

HR in CA

Thank you all for your responses. I needed clear minds to chime in, mine was certainly clouded. You all make very valid points. However in the days of HIPAA everyone seems to be shying away from asking the important questions!

deniseE

Try to forget the specific prescription medication you're talking about and look at it in a more broad context.

Do you have any kind of policy that requires a certain level of fitness for duty...or disclosure of substances that may compromise one's fitness?

Others have suggested verification from the dr. that he's ok to work..that's a good start..but ultimately, your guys see him working...if you have any concerns about his safety...do a favor for both of you and find him ground level work...or place him on a leave of absence.

Keep in mind there is a definate difference between medicinal use and the pot head from your english class in highschool...try to banish that image when talking to this ee.

Don D

Denise: I'm not disagreeing, or at least I'm trying to not be disagreeable. But, I'm wondering, strictly in the employment context, what is the difference in my taking prescription narcotic oxycodone or oxycontin for severe back pain and working.....and taking the same medication without a prescription, buying them from my neighbor and working? Both zonk me to the same degree. Both buzz me out at precisely the same level. One is legal. One is not. Both render me unfit to operate machinery, drive a forklift and climb a scaffold. We are talking about one thing in this context, safety, not making judgements about potheads or legal or illegal drugs. Safety is all that's in the equation. And, at least in this state, a doctor's release to perform an occupation while on medication is not an order or directive to assign that individual to that job. We still have the ability to exercise business judgement and use what we consider safety best-practices, which in this case, I think, means restricting his duties at a minimum, while using marijuana.

marc

Are you expecting your EE to voluntarily tell you if the doctor has extended the prescription? Does the California law allow you to do that?

From a safety perspective, I don't think it matters that the marijuana was prescribed. As Don said, it doesn't matter the source of the impairment, what matters is the impairment and the impact on safety.

I used to be work in the construction industry with extremely high workers comp rates due to injury. The framers were the most notorious. The parent company had a strict drug free policy, but that policy was too restrictive with respect to hiring framers, who were notorious for positive drug tests. It got so bad that a separate company had to be formed just for the framing so different standards could be used. All the developers in the area were in the same boat and business was booming. In order to meet production, the workers had to be hired.

Even at that, positive drug tests and all, injuries occurred at higher rates than the other companies. Was it because the work force was constantly hungover from whatever activities of the evening before or the weekends? No one knew.

There may be more information available now, but to my recollection, there is not a lot of concrete evidence that Marijuana use in the evening translates to impairment the next day.

Don D

That's may be true Marc, but people with marijuana prescriptions don't typically use it recreationally 'the prior nite'. They're allowed under law to use it whenever the scrip says they can. I can't imagine a doobie 'every four hours as needed'.

deniseE

DonD...I didn't mean to imply that safety shouldn't be a concern....keeping ee's safe is important. And, of course, keeping worker's comp claims to a minimum.

What I did want to express is that a prescription drug with side effects, is a prescription drug with side effects. It seemed as if the poster was hung up on the drug being pot...not so much on the side effects. I wanted the policy to be the same for codiene as for pot. If a medical release is needed for one drug it should be needed for all drugs (with similar known side effects)...so that the ee cannot complain about discrimination of any kind.

HR in CA

While it may have appeared that I was hung up on the drug, it's rare that an employee would come to you with a release from a doctor stating the employee is being treated for a health issue and would benefit from the use of Morphine as needed for a year.

My concern is that I do not know enough to determine if he is a risk to himself or others or if he is considered inpaired if the last time he medicated himself was last night. As a previous poster said he may not even be impaired.

While I do not want to overstep into this employee's privacy, I do not want to receive a call that he has fallen from a utility pole. We already pay huge amounts to Worker's Compensation, and knowing this employee could be a higher risk concerns me.

I will be sending a letter to the doctor, asking him to review the job description and provide me with a written opinion if the employee is safe based on the essential functions. If the doctor states he's safe then there is not much more we can do.

Don D

You probably can't in California, but in Mississippi, the handbook can state that an employee is required to notify the Human Resources office immediately if he/she is taking prescribed or unprescribed medication of any nature that would impede or impair their ability to drive or operate machinery or that would tend to make them sleepy or drowsy or that might otherwise affect their safety and attention to duty. And they can be required to produce either a copy of the prescription or the bottle itself. In some cases, I have called a pharmacist myself and asked that they read and fax to me a copy of the side effects notification that must, by law, be given to the individual when a prescription is filled. If it says 'do not operate heavy equipment or machinery or drive while taking this medication', then they are not allowed to do those things on the job. I don't have an interest in delving into a medical condition or knowing a diagnosis. I just don't want the company shut down because an intact hand is lying on the floor or a once-live body is prone under a forklift.

Pork

HR in CA: You know I would find it hard to believe that an HR or a medical authority would not know that a person who is under physician's care and under the influence of a controlled substance in a high risk "safety sensitive" position would automatically make this employee as "medically disqualified" for the "safety sensitive" high risk work. The prescribing physician should have disqualified and sought a light-duty position, which would include the necessary time to under go "di-tox" for the amount of chemical in his/her system for treatment of whatever.

PORK

HR in CA

Pork, I agree with you!

Our Worker's Compensation carrier however, would not decide one way or the other (to remove him from th job or not) Once we learned of the usage, I immediately contacted the carrier for help. What a waste of time.

In the future, we will suspend until the doctor provides us with his written opinion. We terminated this employee a month ago, and never did hear from the doctor.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 06-14-04 AT 06:03PM (CST)[/font][br][br]In my experience, it has never been the duty or obligation of anyone employed by the comp carrier to 'decide one way or the other to remove' an employee from a job. Nor do they 'decide' that the employee will be returned to light duty. Those are the sole obligations of the employer. You're paying them to process and handle claims and monitor your experience and occasionally they might give you certain types of 'feedback'. The employer alone must assess its risks, legal and otherwise in these areas. The comp carrier is all about making money and jacking up your premiums.