While some States' laws have similar provisions, no State's medical and marijuana law is identical to the law of another state. These differences can create a risk management nightmare for employers with operations in several states.
The starting point in the risk analysis is whether the employer wants to prohibit the use of or impairment by medical marijuana in the workplace. If not, the employer may simply remove marijuana metabolites from the testing panel, or choose to stop treating a positive test for marijuana as a basis for disqualification from employment or adverse action. This is not a risk management strategy we would recommend for most employers. While it may be difficult to establish the level of impairment (discussed later) there is no question that an impaired employee presents a safety and health risk in the workplace.
The next step in addressing medical marijuana laws is to understand what the laws do not allow. I have heard from many clients that employees are claiming they have the legal right to use or be under the influence of medical marijuana while at work. THIS IS NOT TRUE.
Medical and recreational marijuana (Delta 9) is NOT "legal" despite state laws. Marijuana remains an illegal Schedule I controlled substance under federal criminal statutes.**
**Contrary to urban legend, "Delta 8," derived from hemp, is not lawful in every state. Some states treat hemp as marijuana. In other states, hemp-derived products containing over 3% THC remain unlawful. And employees beware - Delta 8 metabolites may be mistakenly identified as Delta 9 metabolites in drug tests.
Despite the legalization of medical marijuana in many forms or fashions in many states,
- NO state law authorizes an employee to use medical or recreational marijuana in the workplace while on duty.
- NO state law authorizes an employee to work under the influence of medical or recreational marijuana in the workplace or while on duty.
In fact, the majority of state medical and recreational marijuana laws can be considered “employer-friendly.” In many states, medical and recreational marijuana laws DO NOT override the doctrine of employment-at-will. Other States prohibit adverse action based on an employee’s status as a medical marijuana prescription holder, but provide an employer does not have to allow or accommodate use or impairment in the workplace. A handful of states prohibit adverse action unless an employer can prove the employee used medical marijuana while at work, or was under the influence while at work, but do not protect recreational marijuana. To develop a uniform policy, an employer should determine the prohibitions of the states in which it operates and default to the lowest common denominator, which may well be proof of use or impairment while at work.
Proof of use or impairment is not as cut and dry as it once was. For years, screens of urine, blood or hair have been the go-to means for assessing use or impairment in the workplace. The Department of Transportation has specific, set-in-stone thresholds to establish impairment for regulated drivers and mechanics. State motor vehicle laws have specific, set-in-stone thresholds to establish impairment. The medical marijuana laws of many States have thrown these thresholds into question with respect to the workplace.
Most experts (and OSHA) agree that current urine, blood, or hair screens cannot provide reliable proof of the time of use or the level of impairment. In recognition, eight States’ laws provide that an employer may not rely solely on a positive drug test to establish workplace impairment. The majority of State laws are silent on the question while a few states allow employers to enforce “zero tolerance” policies – a positive test is conclusive of use or impairment. Once again, to manage risk, a multi-state employer wanting a uniform policy should default to the lowest common denominator of the States in which it operates.
New testing technology allows an employer to take “impairment” out of the equation and focus on workplace “use.” Several companies have developed saliva and breath screening devices. These devices register marijuana metabolites for only short windows of time compared to screens of urine, blood, and hair.
High concentrations of marijuana metabolites in a saliva test indicate recent use or consumption. Any measure of marijuana metabolites in a breath test indicates use at work. (Breath test will not detect edibles.)
Testing provides an employer with objective evidence. Of course, employers can avoid the issues associated with testing and rely on other evidence - observation, employee self-admission, reliable information from a co-worker, searches, and reasonable suspicion arising from employee conduct and appearance. None of these methods requires testing to support a determination of workplace use or impairment, but testing can serve as further support for a determination.
Medical and recreational marijuana laws are not a free pass for employees to use and get high at work. Employers can elect to, or elect not to, prohibit use and impairment at work. Employers can choose to test or not to test. For a majority of states, traditional drug-testing thresholds appear intact. In States restricting reliance on traditional urine, blood, or hair testing, new technology allows employers to focus on proving use rather than impairment. However, reasonable suspicion protocols are an employer’s strongest tool and protection in the medical marijuana world.
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The Labor & Employment Team at Christian & Small
Labor & Employment
The Labor & Employment attorneys at Christian & Small represent only businesses and management employees. On the front end, we advise clients in risk management - how to avoid or lessen the risks attendant to employment decisions, policies, and practices. When an employment issue leads to a charge or lawsuit, we represent clients before federal agencies and in federal and state courts. Our experience encompasses the many federal employment statutes, regulations, and Executive Orders governing employment as well as the laws of many states.
Discrimination, harassment, and retaliation under Title VII, 42 U.S.C. § 1981, Age Discrimination in Employment Act, Americans with Disabilities Act, and Uniformed Services Employment and Reemployment Rights Act.
- Defense of national distributor in pattern and practice class action brought by EEOC.
- Defense of several sexual identities and sexual orientation claims.
- Defense of a municipality in serial discrimination lawsuits filed by a single employee.
- Defense of a municipality in USERRA claim based on failure to hire a veteran.
OSHA
Our OSHA Response Team advises businesses before, during, and after OSHA knocks on the door. Our Team provides counseling regarding OSHA obligations and compliance. We prepare response plans for managing an OSHA inspection before it begins, designating managers and supervisors the roles and duties they will perform during an inspection.
Our OSHA Response Team is rapid-response, boots on the ground. We are on-call and will be on-site to participate in the inspection and prepare management and other employees for interviews. Further, we will educate them about their rights during an OSHA interview and investigation and conduct post-interview de-briefings. The Team remains involved in any continuing investigation, managing communications with OSHA, as well as the document collection, review, and production.
Family Medical Leave Act
- Coverage and compliance.
- Balancing leave rights under FMLA, ADA, and worker's compensation.
- Defense of interference and retaliation claims.
National Labor Relations Act
- Advise clients in “employer versus independent contractor” issues.
- Advise contractors and franchisees regarding “joint employer” relationships.
- Advise general contractor during the construction of an electricity steam plant under collective bargaining agreement governing 13 trade unions.
- Obtain emergency injunctive relief against “wild cat” strikes and criminal conduct during lawful strikes.
- Represent businesses before NLRA in unfair labor practice charges.
- Advise manufacturers, successfully defeating two organizational campaigns by United Steelworkers.
Office of Federal Contract Compliance
- Representation of national manufacturer to negotiate proposed multimillion-dollar fine for violation of race and gender affirmative action obligations to a back-pay award under $100,000.
- Davis-Bacon and Miller Act challenges.
Worker Adjustment and Retraining Act
- Advise bankrupt company in lawsuit asserting multi-million dollar claim.
- Prepare WARN compliance plans.
Fair Labor Standards Act
- Representation of manufacturers, multi-family living communities, hospitals, restaurants, landscapers, and event staffing businesses in collective actions with possible classes ranging from 50 to 1,500 members.
- Representation of national trucking company in overtime claim based on employee allegedly working after scheduled hours via emails, texts, and social media.
Immigration
- Advise clients regarding compliance with federal and state immigration laws.
- Audit I-9 and other immigration documentation.
Alabama Workers’ Compensation Act
- Representation of NTN-Bower, Goodyear, Pemco Aviation, CBI, and GeoVera, Zurich and Travelers insureds in workers’ compensation matters.
- Defense of co-employee litigation.
Workers’ Compensation Retaliation Claims
- Representation of companies, including recent claims by illegal alien deported during proceedings and successfully obtained dismissal despite plaintiff’s request for electronic discovery and trial via virtual hearing.
Restrictive Covenants
- Prepare non-competition, non-solicitation, and non-disclosure agreements.
- Obtain immediate and permanent injunctive relief against violation.
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Labor & Employment Team
The Firm's Labor & Employment section at Christian & Small enjoys a deep bench. The following attorneys include employment law in their practice.
David B. Walston, Partner
David B. Walston is the lead attorney in the Firm's Labor & Employment practice group. David has practiced exclusively in the labor & employment arena for 35 years. In addition to defending charges and lawsuits, David provides real-time advice to clients with operations in Alabama, Georgia, Florida, Mississippi, Louisiana, and Texas.
David regularly speaks at conferences on a wide range of employment topics. He also authors the Christian & Small Labor & Employment Law Update - an email update through which David provides clients with summaries of recent developments in the law.
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The Firm
About the Firm
Christian & Small is a multi‐disciplinary regional law firm with a global perspective. Our attorneys serve individuals and established regional, national, and international companies, as well as emerging businesses. Clients rely on Christian & Small for innovative legal services that reflect a deep understanding of the law and their businesses.
Our firm is headquartered in Birmingham, Alabama with additional offices in metro-Jackson, Mississippi, and the Alabama Gulf Coast, providing us a strategic geographic base from which to serve clients on a statewide basis throughout the Southeast. Greer B. Mallette serves as managing partner.
Highlights
- Represent clients in all Alabama jurisdictions as well as in other states, including Florida, Georgia, Illinois, Louisiana, Mississippi, New York, South Carolina, Tennessee, and Texas.
- AV® rated by Martindale-Hubbell
- Ranked one of Alabama's top litigation firms by Chambers USA Guides: Six partners recognized by Chambers USA
- Listed in Fortune Magazine as one of the Top Ranked Law Firms™
- Recognized in the 2022 edition of the U.S. News and World Report and Best Lawyers "Best Law Firms" with a National Tier 3 Ranking for Mass Tort Litigation/Class Actions-Defendants and with a Metropolitan Tier 1 Ranking in 18 practice areas
- 16 attorneys named to Best Lawyers in America® for 2021
- 15 attorneys selected as Mid-South Super Lawyers®
- 8 attorneys recognized as Benchmark Litigation 2021 Litigation Stars
- Deborah Alley Smith and Sharon D. Stuart named to Top 50 Women Mid-South Super Lawyers
- Deborah Alley Smith and Daniel D. Sparks named 2021 Top 50 Alabama Super Lawyers®and 2021 Top 50 Birmingham Super Lawyers®
- Recommended by Benchmark Litigation as one of Alabama's Eleventh Circuit litigation firms.
- Member, International Society of Primerus Law Firms
- Member, Leadership Council on Legal Diversity
- Corporate social responsibility focus is on education with an 11 year relationship with Teach for America Alabama; Former Managing Partner Deborah Alley Smith serves as Chair of the Teach for America Alabama Advisory Board.
Diversity
As reflected in our strategic vision, “Christian & Small is committed to being a dedicated, diverse, and supportive team of legal professionals partnering with our clients to render superior service and exceptional value in the areas of litigation and business.” Diversity is one of the firm’s core values. We believe that diversity in backgrounds, experiences, and ideas enriches our lives and enhances the quality of the work performed by the professionals at Christian & Small.
Our priority is to retain and mentor diverse attorneys and staff and to provide opportunities for diverse lawyers through hiring, both laterally and from law schools. This goes beyond recruitment and includes educating diverse groups of elementary to high school students about law as a career, actively engaging our lawyers with diverse educational institutions and student groups, and funding annual law school scholarships for minority students for more than ten years. Our attorneys and leadership are actively engaged in ongoing conversations concerning diversity, equity, and inclusion, and our DEI Committee routinely reviews best practices and participates in DEI studies and training.
Christian & Small LLP 505 20th Street North Suite 1800 Birmingham, Alabama 35203 Tel: 205.250.6643 Fax: 205.328.7234
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NONSTOP ADVOCATES
No representation is made that the quality of legal services to be performed is greater than the quality of legal services to be performed by other lawyers.