5 steps in the inspection process to focus on when preparing your team
by Richard D. Alaniz
December 28, 2017

In July 2017, the Massachusetts Supreme Judicial Court found that companies have a duty to engage in an interactive process with employees to determine if there are “equally effective medical alternatives to the prescribed medication” (marijuana) for an employee’s handicap that would not violate the company’s drug policy. When an employee’s physician believes that medical marijuana is the most effective treatment for an employee’s medical condition, employers must allow employees to use marijuana when they are not on duty. The court found that there is an implied right to off-site medical marijuana use as a permissible accommodation for a handicapped employee.

A Federal District Court in Connecticut in August 2017 found that the Controlled Substances Act, the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act do not preempt or nullify the state law on the use of medical marijuana. The Controlled Substances Act does not prohibit an employer from hiring an employee that uses marijuana when not on duty. The ADA does not prohibit employers from accommodating employees by permitting off-duty medical marijuana use. Finally, The Food, Drug and Cosmetic Act does regulate employment and the claim in the case was limited to Connecticut’s anti-discrimination law.

Finally, in May 2017, a Rhode Island Superior Court found that even though nothing in the medical marijuana law required an employer to accommodate medical marijuana at work, the court found that an employer violated the law when the plaintiff disclosed she used medical marijuana, would not stop using marijuana (off duty) while working for the company, and could not pass a drug test. The court concluded that the employer has no duty to accommodate the use of medical marijuana by restructuring jobs, modifying work schedules or other accommodation. However, the court ruled for the plaintiff because the employer discriminated against the employee for her disability by refusing to hire her because she used medical marijuana outside of work to treat a disability.

The law concerning off-duty marijuana use is rapidly changing across the country. If there is an OSHA investigation, then employers may be liable for accidents caused by employees that failed drug tests because they use medical marijuana off duty. Currently, drug tests for marijuana cannot gauge whether an employee was under the influence of marijuana at work because marijuana can stay in someone’s system for days or even weeks.

Employers that conduct drug tests after an accident should be aware that OSHA might determine that the drug testing is retaliatory if the employer has a blanket drug-testing policy and is not required to drug test by federal or other law.

5. Completing an Effective Closing Conference

At the end of the inspection process, a closing conference is routinely held. The compliance officer normally will reference any standards that he/she feels have been violated, as well as possible abatement measures that could or should be taken. The management team representative should take the opportunity to obtain as much detailed information as possible, including all possible violations that may result from the inspection as well as the specific OSHA standards involved.

If there are any unique problems with abatement, those should also be thoroughly discussed, including any efforts already taken to abate the condition and eliminate any employee exposure to a hazard.

OSHA inspections do not have to be the traumatizing experience generally envisioned by most employers. Proper planning and preparation, as well as reasonable efforts to control the scope of the inspection as it is occurring, will greatly increase the employer’s opportunity to limit or even avoid costly OSHA citations.