Category Archives: Drug & Alchohol Use

Quirky Question #228, E-Cigarettes: To Vape or Not to Vape at the Workplace

Question:

Our California company has a no smoking policy but had not thought to include a ban on e-cigarettes, as we had not experienced any problems with them at the workplace until now.  A handful of our employees use e-cigarettes during work hours.  A week ago, a supervisor informed HR that coworkers were concerned about the health effects of being exposed to e-cigarettes.  Can we and should we ban e-cigarettes at our workplace? Answer→

Quirky Question #211, Marijuana Use

Question :

One day during the lunch break, as I was heading to my car in the parking lot, I discovered two employees smoking what smelled like pot.  I approached the employees and reprimanded them for engaging in illegal activities on the job, and told them that I would have them terminated.  One of the employees, whose mother works at a plaintiff side employment firm and whom I knew suffered from chronic low back pain, said that I could not terminate them because their activities were legal.  They both brought in a “recommendation” for marijuana from a physician and left it on my desk.  When I called them in to investigate, they stated that they would have claims for disability discrimination and failure to reasonably accommodate if I disciplined or terminated them.  Is this true?  Do I have to allow my employees to use pot? Answer→

Quirky Question # 178: Medical Marijuana and the ADA

Question:

We are a large company with operations in several states. Three of the states in which we operate permit medical marijuana use: California, Oregon, and Washington. One of our factory employees, working in an Oregon location, recently requested that we accommodate his medicinal use of marijuana. The employee claims that even if state medical marijuana law and discrimination law does not require accommodation, accommodation is required under the Americans with Disabilities Act because the marijuana is treatment for a disabling medical condition. Is this true? We have not been accommodating any employee use of medical marijuana. Are we going to be in trouble under the ADA? Answer→

Quirky Question # 172, Employing Cigarette Smokers

Question:

Our company recently adopted a policy of not employing cigarette smokers.  We decided to adopt the policy to (1) reduce health our care costs and (2) set a positive example given our business’s relation to health.  We now have two problems.  One applicant admitted that he smoked during his interview and we did not hire him.  He now claims he’s going to sue us.  Do we have anything to worry about?  What claims could he bring?

Also, we recently caught a current employee smoking in our parking garage, in violation of our work rule against smoking on company property.  Can we terminate her employment? Answer→

Voluntary Leave Policy, Quirky Question # 35

Quirky Question # 35:

I am the HR Director for a large company with operations in Alaska.  Our Alaska-based employees work on a rotating schedule of two weeks on / two weeks off.  Many of these employees commute from the Outside (Lower 48) for their two-week rotations.  During their rotation, these employees live in company provided housing and are transported to the work site via company provided transportation.  For job safety reasons, our company has a zero-tolerance drug and alcohol policy.  Employees who report to work with a detectable level of drugs or alcohol in their system are terminated.

Recently, one of our new mechanical engineers from the Outside showed up at the bus stop intoxicated.  At his co-workers’ urging he wisely opted not to get on the bus and simply did not report to work.  The next day, he advised his supervisor that he may have a problem with alcohol and that he would be seeking treatment when he returned home at the end of the week.  He is now advising us that he cannot return to the work site for his next rotation due to his doctor’s advice.

This employee does not yet qualify for FMLA leave, but our drug and alcohol policy does encourage employees to seek assistance for drug or alcohol abuse and indicates that employees who come forward voluntarily will not be penalized.  We obviously want to encourage employees to get help if they need it, and we are willing to let this employee forgo his next rotation, but how much leave (if any) are we required to give him?  We are already short staffed as it is and his absence is making things even more difficult.

[Set forth below is our analysis of Quirky Question # 35.  As this was a question submitted to the employment attorneys in our Anchorage, Alaska office, our colleagues there provided the analysis.  The response below was furnished by Wendy E. Leukuma.  Wendy is a 1999 graduate of Northern Michigan University and a 2002 graduate of William Mitchell College of Law.  If you would like to communicate with her about the question and analysis below, or any other employment law issue, her direct line is 907.257.7826 and her email address is leukuma.wendy@dorsey.com.  Wendy’s resume is displayed at www.dorsey.com.] Answer→

Medical Marijuana Use In the Workplace, Quirky Question # 21 (California Issue)

Quirky Question # 21:

We recently made a job offer to a gentleman as a lead systems administrator in the California division of our telecommunications company.  As part of our routine pre-employment drug testing, he tested positive for marijuana.  However, the applicant presented us with a doctor’s note allowing him to use “medical marijuana” for chronic back pain cause by injuries he suffered while on active duty in the Air Force.  He explained that he’s been using it for years, he only uses it at home, and it has never had a negative impact on his job performance.

It’s our company’s policy not to hire anyone who tests positive for illegal drug use.  But this is the first time we have been presented with a doctor’s note authorizing the marijuana use for medical reasons.  Are we going to be in trouble if we refuse to hire him? Answer→

Reasonable Suspicion of Drug Use, Quirky Question # 20

Quirky Question # 20:

We recently saw in the newspaper that one of our employees had been arrested for DUI and marijuana possession.  Based on the newspaper article, we insisted on drug testing the employee under the “reasonable suspicion” section of our drug testing policy.  The employee adulterated his urine sample by adding soap to it.  The testing facility advised us that they consider an adulterated sample to be the same as a positive test.

We have asked the employee to go through a treatment program, as required by a “first positive” result of a drug test under our policy.  The employee is balking.  Are we being unreasonable?  Can’t a newspaper article provide us reasonable suspicion to warrant a drug test? Answer→

Drug & Alcohol Testing, Employment of Minors, Quirky Question # 13

Quirky Question # 13:

I read your Quirky Question # 12 regarding sexual harassment and the issue of whether the policies need to be tailored to minors.  Your question alerted me to a related issue.  Like the company described in your last question, our firm also employs a number of minors under age 18.  We have a pre-employment and post-accident drug and alcohol testing policy.

We are wondering whether the minors’ parents have to sign the authorization for the drug testing?  Do the minors themselves?  Is a drug-testing authorization signed by the parents at the start of the minors’ employment sufficient to cover all future drug and alcohol testing of the minors? Answer→