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Employer Drug Policies Part II - Mary Jane's Pot Brownies and Discipline for Accidental Policy Violations

April 28, 2014

By Michael G. McClory

In today's post I revisit a post from two weeks ago that a number of you enjoyed. That post, titled Employer Drug Policies - When Mary Jane Brought a Pot Brownie to Work, addressed a fictional mailbag question from C.F. Ohno, company accountant and human resources manager for Chair Crazy (a local office supply company) concerning two employees (bookkeeping assistant Mary Jane and delivery driver Alice) who had inadvertently violated the company’s zero tolerance drug policy. The employees also were sisters. Due to a plumbing problem at her own home, Alice had been staying with Mary Jane and her husband. Hoping not to be a burden, Alice took the initiative and packed lunches for the sisters, including brownies for dessert. After discovering the brownies during lunch, Mary Jane approached C.F. and told him her husband had obtained an Oregon medical marijuana card following eye surgery that went poorly, that in their drug-related embarrassment they never told Alice about the card or the pot in the brownies, and that as a result Alice had unknowingly packed pot brownies in their lunches. Mary Jane had not eaten hers because she knew what it was, but she told C.F. she assumed Alice ate her brownie and was driving around in a Chair Crazy truck high as a kite. At C.F.’s direction, Mary Jane spoke to Alice, who confirmed she had eaten two brownies. C.F. sent them both home with pay and wondered what he should do next.

The Bullard Edge’s response to C.F. reported that state disability discrimination laws in Oregon, Washington and California do not require employers to accommodate the medical use of marijuana (or the personal use of marijuana that is permitted in Colorado and Washington).  I also noted that a new medical marijuana law in Illinois prohibits (with exceptions) adverse action against persons by virtue of their status as a cardholder or caregiver. I also suggested that the best approach would be for C.F. to review the company’s policy and hinted that some leniency might make sense under the circumstances.

Many readers enjoyed the fact pattern and appreciated the legal overview, but wanted more HR direction. One reader in Phoenix offered the following comment and question: “Good information in the article, but what should C.F. do?”

That is a reasonable question and here is my response. Chair Crazy should carefully review its policy and its past practice. The company also ought to look at the type of work being performed and any safety requirements associated with that work. Mary Jane is an assistant bookkeeper, which is probably not a safety sensitive position; Alice is a driver, which is safety sensitive. Moreover, the company may want to look to see whether these actions, intentional or not, result in the company having broken the law or any contractual commitments. If the policy prohibits the use or possession of marijuana in the workplace or on the job, then both Mary Jane (who brought marijuana into the workplace) and Alice (who used marijuana on the job) may have technically violated the policy. Typically violations of these policies call for termination (or some form of last chance agreement at the employer's discretion).

It is a slightly improbable hypothetical because in this case neither Mary Jane nor Alice had any knowledge of having violated the policy. If they are able to convince Chair Crazy of their lack of intent, then the company needs to make a decision on how it wants to proceed (keeping in mind the policy, past practice, safety requirements and training, criminal aspects, and contractual aspects - it is a long list).

On the one hand, the company could impose discipline short of termination (or no discipline). However, in doing that it would be establishing a precedent that it would need to keep in mind going forward.

On the other hand, Chair Crazy could impose full discipline for the “innocent” violation. This could have a bit of a whipsaw effect, though. As noted in the post, an enforcement agency, like the EEOC or a state civil rights agency, may conclude that taking discipline against innocent offenders amounts to adverse action against the employees because of their relationship with an individual with a disability (Mary Jane’s husband who uses marijuana due to his disability). This might seem improbable, but the tide is rolling in a pro-marijuana direction. (See, for example, the large number of states that have or are considering medical marijuana laws.)

I do not believe that there is any absolute correct answer. My personal inclination would be to want to issue a written warning and require additional drug policy related training. Whether that would be the avenue I would select, though, would depend all of the relevant factors (including training previously provided by the company, past practice, whether the company could face any criminal or civil sanctions, and whether the actions may have constituted any form of a breach of any contractual obligations).

I hope this helps. Best regards,

The Bullard Edge