If a marijuana- abusing employee causes a workplace accident due to marijuana use, and the employer does not test for marijuana, the employer would be responsible for the costs incurred by the accident.


could affect workplace functionality and productivity. Knowing that an employee is substance-dependent could impact safety, time management, and what functions s/he is allowed to perform in order to limit employer liability.


Employer Impacts of Marijuana in the Workplace Employers considering the removal of marijuana from their testing panel should be aware of the potential impacts of marijuana use on their workplace, which include: • Inconsistent work quality • Poor concentration and lack of focus • Decreased productivity or erratic work paterns


• Increased absenteeism • Unexplained disappearances from the jobsite


• Carelessness, mistakes, or errors in judgement


• Needless risk taking • Disregard for safety for self and others— eading to on- and off-site job accidents


• Extended lunch periods and early departures


• Driving accidents7 While the monetary consequences


of drug use are often hard to measure, it’s clear that as employee marijuana use rises, the negative impact on the workplace will be significant. Drug users in general are absent from work on average 5 days more per month than their abstinent counterparts.8


If


undetected use of marijuana becomes an ongoing issue in the workplace, additional employees could be required to compensate for the increased level of employee absenteeism, decreased work quality and productivity, and the shorter work days—all linked with drug-using employees. Not only will costs increase because of the additional employees


needed, but workers’ compensation and insurance payouts will also increase due to increased on-the-job accidents. Sixty-five percent of workplace


accidents are caused by drug and/ or alcohol-abusing employees.9


If a


marijuana-abusing employee causes a workplace accident due to marijuana use, and the employer does not test for marijuana, the employer would be responsible for the costs incurred by the accident. The Occupational Safety and Health Administration (OSHA) estimates that employers pay out an average of $1 billion/week in workers’ compensation costs alone, and that number could easily balloon if most employers drop marijuana from their testing panel.10


Additionally, employers


who are contemplating the removal of marijuana from their drug testing panel should be aware of potential legal consequences associated with such removal. The OSHA general duty clause, found in Section 5(a)(1) of the Occupational Safety and Health Act, requires that employers provide employees with a workplace that is free from recognized hazards that cause or could likely cause death or serious physical harm to such employees. Hiring known drug users or failing to test candidates and employees appropriately for a drug that causes decreased alertness—such as marijuana—could jeopardize workplace safety. Failure to provide this safe workplace could put the employer in violation of the OSHA general duty clause. Should an employer choose to remove


marijuana from its drug testing panel, that employer opens the door to a variety of potential lawsuits. Employees injured in workplace accidents caused by marijuana- using employees, accidents caused by marijuana-using drivers—the potential


22


datia focus


summer 2018


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