Eighteen states and the District of Columbia have legalized medical cannabis (marijuana) or have effectively decriminalized it. The 18 states are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington. Seven of these states — California, Colorado, New Mexico, Maine, Rhode Island, Montana, and Michigan — utilize dispensaries to sell medical cannabis.
There are many employment ramifications involving the use of medical marijuana. For instance, although legal in Washington and Michigan, an employee can still be fired if he or she tests positive for the drug, despite having a doctor’s recommendation. What are the fleet ramifications of employee drivers operating a company-provided vehicle who use medical marijuana while under the care of a physician? Are there legal prohibitions preventing them from driving a company vehicle?
“The only legal prohibitions would be whether specific state laws prohibit patients prescribed marijuana for medicinal purposes from driving,” said Richard Alaniz, attorney and senior partner at Alaniz and Schraeder, LLP. “However, employers may legally prohibit the use of medical marijuana in the workplace and may prohibit employees from reporting to work or reporting for duty while under the influence of medical marijuana.”
According to Alaniz, if an employer has such a policy prohibiting medical marijuana, then any employee would be prohibited from using a company vehicle or doing anything on behalf of the company while under the influence of medical marijuana.
“The consequence of violating the employer policy would be rightful termination as opposed to some sort of legal prosecution,” Alaniz added.
Rules governing the use of marijuana by drivers with a commercial driver’s license (CDL) are more defined. “Under the federal motor carrier safety regulations, no driver holding a CDL shall report for duty or remain on duty when he or she uses any of a specified list of controlled substances, of which marijuana is one,” Alaniz said. “For the purposes of the federal motor carrier safety regulations, it does not matter whether such a driver is using marijuana pursuant to a proper prescription or for illegal recreational use — a CDL-holding driver who uses marijuana is not only prohibited from operating equipment if he or she uses marijuana, but even from remaining on duty.”
Minimizing Corporate Liability Exposure
If your HR department knows a driver has a doctor-ordered prescription to take medical marijuana, should the HR manager notify the fleet manager of this potential fleet safety risk? You would think they should, but the reality is they can’t by law. The Health Insurance Portability and Accountability Act of 1996, popularly known as HIPAA, makes it a criminal act to divulge medical information to a third-party without the employee’s permission. HIPAA’s Privacy Rule causes many HR managers to struggle with the use and disclosure of protected health information that reveals potential safety risks about employees’ ability to fulfill their employment responsibilities.
There are a host of corporate liability issues if a driver with a medical marijuana prescription is involved in a preventable accident. However, the best way to minimize potential liability exposure in accidents involving drivers who have a doctor’s prescription to use medical marijuana is to address it in advance in the company’s fleet policy by prohibiting its use.
“If the employer does not have reason to know that the employee uses medical marijuana, and if the employer does have a company policy prohibiting employees from reporting to work or reporting for duty while under the influence of medical marijuana, then the employer will not be subject to liability,” said Alaniz. “If the employer did have reason to know that the employee used medical marijuana, or has failed to adopt a company policy prohibiting employees from reporting to work or reporting for duty while under the influence of medical marijuana, then the employer can be held liable.”
Fleet policy must be a living document and updated regularly. Prohibitions about the use of medical marijuana while operating a company vehicle must be documented in writing and drivers must acknowledge receipt.
“Managers should consult employment law counsel to help draft a policy prohibiting employees from reporting to work under the influence of medical marijuana and adopt said policy. Managers should also be familiar with and work with counsel regarding the drug-testing requirements of the federal motor carrier safety regulations,” Alaniz said. “Above all, if a manager becomes aware that an employee may be under the use of medical marijuana, the manager should absolutely not allow the employee to drive a company vehicle or drive for company purposes.”
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